52 Neb. 117 | Neb. | 1897
A brief statement of facts is essential to a clear understanding of the points presented and decided in this case. In the district court of Cuming county Robert P. Kloke and Otto Bauman brought suit against August Cardéis, alleging in their petition that on a date named they were the owners of certain described real estate, and on said date they sold the same to Cardéis for a stated sum, a certain amount of which purchase money Cardéis then paid, and agreed to pay the remainder of said purchase money on the 1st day of May, 1890; that on the date of said sale, and after the making of such payment, they executed and delivered to Cardéis a memorandum, or receipt, in writing, reciting the receipt of part of the purchase money for said land from Cardéis, the sale of the land to him, the purchase price, when the balance of the purchase price was to be paid, and on which date possession was to be given and a conveyance of the real estate delivered to the purchaser. The petition further alleged that the plaintiffs therein had duly performed all the conditions of the contract on their part and ten
1. On the hearing of the proceeding for deficiency judgment the court permitted Gardels to offer testimony which tended to show that the real estate which he contracted to purchase of Kloke and others was not the real estate described by them in their petition in the suit brought to foreclose the real estate contract. This action of the district court was erroneous. Gardels had had his day in court as to that question. In the suit to foreclose the real estate contract the court had found and decreed that Gardels had entered into the contract with Kloke and others to purchase the identical real estate described in that decree. This decree remains in full force, and on the. hearing of this proceeding for deficiency judgment neither of the parties were entitled to relitigate any material issue settled by that decree. The decree in that, case finally determined that a contract existed between the parties here for the sale and purchase of the real estate described in that decree. It determined the amount Gardels promised to pay therefor and the amount due to Kloke and others from him on such contract of purchase. If this decree was wrong, Gardels’ remedy was to seek, in
2. It is insisted by tbe defendant in error in support of the judgment of tbe district court that tbe latter was without jurisdiction to render a deficiency judgment, as tbe action out of which tbe alleged deficiency arose was one for tbe foreclosure of an executory contract for tbe sale of real estate. If tbe action of Kloke and others bad been one at law for tbe recovery from Gardels of tbe unpaid purchase money on bis contract it would never ' have occurred to any lawyer to question tbe jurisdiction of tbe district court. If Kloke and others bad conveyed tbe real estate to Gardels at tbe time of making tbe executory contract and bad taken back from him a formal real estate mortgage to secure tbe payment of tbe purchase money, no one would have ever successfully questioned tbe authority of tbe district court to enter a decree forclosing tbe mortgage and to render a personal judgment against Gardels for a deficiency, bad there been one. It is probably true that an executory contract for tbe sale of real estate is not a mortgage within tbe meaning of section 847 of tbe Code, which confers authority upon tbe district courts to render a personal judgment against tbe parties liable therefor for the amount remaining due tbe mortgagee after tbe sale of tbe mortgaged premises. But there is in this state but one form of action, namely, a civil action; and tbe differences between actions at law and actions in equity, so far as tbe form of such actions is concerned, are abolished by tbe Code, and tbe district courts, both by statute and tbe •constitution, are invested with general legal and equitable jurisdiction.' Tbe district court, then, was not without jurisdiction to render tbe deficiency judgment asked for in this case simply because tbe deficiency grew out of an executory contract for tbe sale’ of real estate which had been foreclosed as a mortgage. It may be that
Reversed and remanded.