Lausman v. Drahos

8 Neb. 457 | Neb. | 1879

Cobb, J.

The petition shows that the mortgage executed by Neligh to William Parratt was made, the debt which it was given to secure had matured, suit for the purpose of foreclosing the same had been commenced and prosecuted to judgment, and a decree of foreclosure and final judgment rendered in the ease, before the making of the deed by Neligh to Mrs. "Wisner, under whom the plaintiff claims title to a part of the mortgaged premises.- This being the case she must be treated as a volunteer so far as her interest in the sale and confirmation is concerned, and not entitled to notice of any of such proceedings. It is a well-settled principle that when several parcels of real estate have been mortgaged .in one conveyance and the mortgagor afterwards conveys different parcels of such property to as many parties and retains some of such parcels undisposed of, the mortgagee or owner of the mortgage will be compelled to first sell those parcels which the mortgagor has not conveyed, and if the same prove insufficient, then those parcels which have been conveyed in the inverse order of their alienation by the mortgagor.

But in order to do this the ordinary and proper means must be used. It is but seldom that persons buy property incumbered by a mortgage which has been foreclosed, and when they do they should understand that they assume the risk of the property being sold without notice to them, and if there is any circumstance connected with the property, such as that claimed by the appellant, that it is they who have duties to perform in respect to the sale, and that it will not do to lie still until the law has taken its course and the rights of other parties in the premises have become fixed.

Notwithstanding the late day on which the appellant acquired title to the lot in question, had she notified the appellee, Mary Parratt, of her title, and requested that that portion of the mortgaged premises not alienated by Neligh be first sold, she would have been entitled to such request, and had it been refused the law would have enforced it. But it is not alleged that either William Parratt, in his lifetime, or his administratrix had actual notice of the conveyance by Neligh to Mrs. Wisner. The recording of the deed was not notice to them. See Matteson v. Thomas et al., 41 Ill., 110, and cases there cited. See also Inglehart v. Crane, et al., 42 Ill., 361. Neither was the occupation of said lot 6, in block 19, by Fred Sonnensehein as tenant of the appellant any notice of her rights to either of the Parratts, as they had a right to suppose that Sonnensehein was a tenant of Neligh.

If we are correct in the above views then it will be unnecessary to inquire into the allegations of said petition as to the amount which was paidbyNeligk by way of bonus for delaying the sale, etc. In the absence of notice of the rights of appellant the appellee, Parratt, had the right to postpone said Sale from time to time at the request of Neligh, and is chargeable with no laches therefor. And it being nowhere stated in the petition that the whole of said mortgage debt had been paid at the time of the sheriff's sale, it follows that the appellee,.Parratt, having no notice of the rights of appellant, had the right to sell such parcel of the mortgaged premises as might prove to be the most salable.

The charge of fraud and collusion against Sonnensehein and Drahos is not set out with sufficient comprehensiveness to constitute a cause of action against them.

It follows from these views that the judgment of the district court in sustaining the demurrer to the petition must be affirmed.

Judgment affirmed.