| Neb. | Mar 24, 1891
This action was commenced by J. F. Losch in the district court of Cuming county, to foreclose a mortgage
In January, 1886, proceedings were pending in the district court for Cuming county, wherein John Michel prayed for a divorce from Elizabeth Michel. A decree of divorce was granted on the 18th of the month, and on the same day John Michel, in settlement of alimony, executed and delivered to his wife a note for $800, payable May 1st thereafter, and secured the payment of the same by giving the mortgage sued on, which was recorded January 19, 1886. Subsequently the parties were remarried, and ever since have lived together as husband and Avife.
On March 7, 1887, John Michel and Avife, by warranty deed, conveyed the mortgaged premises to the defendant Tannenberger, which deed was filed for record on the 12th day of the same month. Prior to the date of said conveyance Ferdinand Koch commenced suit against John Michel in the district court of Cuming county, and attached the land in question. Subsequently Koch recovered a judgment in the case for $788.76 debt, and $36.63 costs, and an order for the sale of the attached property. At the sale the land Avas purchased by Koch and Sonnesckein.
It is claimed that the court erred in rendering a decree of foreclosure, because the mortgage had been paid and released prior to the commencement of this suit, and before the sale in the attachment case. It is conceded that the mortgage was never discharged of record. T. M. Franse
But, as we vieAv the facts disclosed by the record, the' plaintiffs in error are not in a position to question the validity of the mortgage, or to urge that it was not a lien upon the land. They purchased the land subject to this mortgage. Under the order of sale issued in the attachment suit the real value of the land was appraised at $3,200. The certificate of liens made by the county clerk sIioavs a mortgage of record for the sum of $1,500 in favor of James Thompson, and another to Elizabeth Michel for $800, dated January 18, 1886. These mortgages were recognized as liens by the appraisers, and the amounts were deducted by them, in making the appraisement, from the real value of the land. The plaintiffs in error purchased
Counsel for jfiaintiffs in error say that the court erred in entering a decree for the plaintiff below, because he was not the owner of the mortgage when suit was brought. Considerable testimony was given on this branch of the case. The plaintiff produced the note and mortgage duly assigned to him, and testified he purchased them, paying therefor $100 in cash, and agreed to pay $100 more, and to perform some legal services for Mrs. Michel. A careful reading of the testimony convinces us that the plaintiff was the owner of the mortgage and is the real party in interest. True, he purchased it for less than a third of its value, but as Mrs. Michel is not complaining, it is certainly no concern of the plaintiffs in error.
It is finally urged that the court erred in not rendering judgment canceling the deed from the Michels to Ubaldus Tannenberger. The undisputed testimony shows that there was no consideration for the deed, that it was made for the sole and only purpose of hindering, delaying, and defrauding the plaintiffs in error, Avho were at the time creditors of the grantors. The defendant Tannenberger, although a Avitness in the case, made no denial upon the witness stand of the allegations and proof of fraud. The deed creates a cloud upon the title of the plaintiffs in error to the land and should be canceled.
A decree will be entered in this court canceling the deed from the Michels to Tannenberger. In all other respects the decree of the lower court is affirmed.
Judgment accordingly.