53 Neb. 400 | Neb. | 1898
This action was begun by Phoebe Rebecca Elizabeth Elwina Linton, and her husband, Adolphus Frederick Linton, against John Whittaker Cooper and others, composing the firm of Brown, Janson & Co., bankers in London, the object being to have declared void and canceled a mortgage to secure £10,000, purporting to . have been made by the .Lintons to Brown, Janson & Co. on fifty acres of land in Omaha, and also a deed purporting to convey certain other lands in Omaha, from the Lintons to Brown, Janson & Co. Brown, Janson & Co. answered, and by cross-petition sought the foreclosure of both instruments, alleging that the deed had been executed to secure the payment of a debt. On the trial the plaintiffs dismissed their petition, and the defendants abandoned all claim under the deed, so that the case proceeded as one by the defendants against the plaintiffs to foreclose the mortgage on the fifty acres. There Avas a finding for the plaintiffs, and a decree denying foreclosure and cancelling the mortgage. The defendants appeal.
Although both in the district court and in this the burden lies upon the defendants to establish the mortgage, the case can be best developed by stating the defenses relied on by the plaintiffs. These, while volu
Mrs. Linton is of American birth, the daughter of John Borland Finlay. Mr. Linton is a British subject; and the two seem to reside in England, although their letters in evidence are dated from London, Brighton, Ostend, and Aix-la-Chappelle. Mrs. Linton is the owner in her own right of a considerable amount of property in and about Omaha, including the fifty acres in controversy. Mr. Linton had an account, in 1889, with the banking firm of Brown, Janson &. Co., tbe defendants. On the face of this account he was in October of that year in debt to the bank in a large sum, apparently something-over £12,000. An effort is made to show that at least £10,000 of this debt was not really his, but that of Coates, Son & Co. We need not pay much attention to this branch of the case. In the light most favorable to Mr. Linton it would seem to be a debt for which both he and Coates, Son & Co. were liable, and the only question would be which is the principal debtor and which the surety. There is in the record a judgment at law in England from which it appears that Linton has been adjudicated the debtor of the bank to the amount claimed. It is the theory of the defendants that the mortgage w;as delivered October 21, 1889, to cover the existing- indebtness of Linton to the bank, together with future advances. The mortgage is dated April 15, 1889. It is clear that it was not originally executed for the purpose of covering this debt, *»ut was, on the contrary, executed with a view to obtaining- other advances from the bank for different purposes. The negotiations for this loan resulted in its rejection by the bank, and' the mortgage was returned to Mr. Linton without delivery. How it again got into the possession of the bank raises the cru
“Gabarston House, Oct. 18th, ’89.
“Sir : My husband tells me that you are under the impression that I have trustees in America. The only one I have is for the property left me by my mother, which is all in Pennsylvania, and is now being contested, as 1 am advised by counsel that he has no right to hold the property, as the will was .invalid. The whole of the Linton estate in Omaha belongs to my husband and myself. My husband has my authority to make arrangements with your bank about the property, and any arrangement made by him I will agree to. I am not an American, as Mr. -Van Wagner stated^ but a British subject, and all documents signed by me must be judged by the English courts alone.
“Believe me, truly yours,'
Euwtna Linton.”
Relying on this letter Mr. Cooper accepted the mortgage on October 21, and on the faith thereof made, a further advance to Air. Linton of £3,800. These facts are denied by the Lintons. In order to explain their theory it is necessary briefly to recur to the former transactions. They claim that after the former negotiations had failed, the mortgage was returned to Mr. Linton. Colonel Fin-lay was during the summer in England; Linton was about, in his presence, to destroy the mortgage, when
Before referring to the evidence as to subsequent events it may' be proper to say that the plaintiffs contend that the subsequent conduct of Mr. Linton could in nowise tend to bind Mrs. Linton. . Whether this is true, in view of the Arery broad and general authority conferred by the letter of October 18, we need not inquire. Mr. Linton’s subsequent conduct and admissions were admissible in evidence for the purpose of impeaching his own testimony if for no other purpose. On December 19 he addressed to Coates, Son & Co. a letter, in which he says: “If you will get me a loan of say £20,000, with which I can pay off my loan of Brown, Janson & Co. of £10,000 (of San Sebastians and £16,000 mortgages on the Omaha property), I will, besides handing you the above security, give you a further collateral security of,” etc. There was executed in April not only the £10,000 mortgage, but also another of £6,000 not involved in this case, and the “£16,000 mortgages on Omaha property” could only have referred to these tAvo. February 3, 1890, he addressed to Mr. Shard, of the firm of Janson, Cobb, Pearson & Co., a letter, in the course of which he says: “My only objection to your putting the mortgage of the Omaha property on record is that it aví-11 destroy or interfere Avith our position there, as we have mwer .had a mortgage on the property before, and it is only necessary for the bank to receive payment or further cover. It does seem to me important that mortgage should not be upon record unless Ave are unable within the next few days to settle Avith the bank.” Some time, apparently
The mortgage was acknowledged before an official describing himself as consular agent. It is contended that such an official has no authority to take an acknowledgment, and that the deed being that of a married woman, a legal acknowledgment is necessary to its validity. In support of that proposition we are cited to numerous
It is argued that without an acknowledgment the mortgage should not have been received in evidence; but the statute merely makes a proper acknowledgment sufficient proof to admit the instrument, and it does not make that method of proof exclusive. An unacknowledged instrument, as shown by the cases already cited, may be received in ev-idence, provided its execution and delivery be proved, as they were in this case. The married woman’s act (Compiled Statutes, ch. 53, sec.- 2) provides that a married woman “may bargain, sell, and convey her real and personal property, and enter into any contract
We now come to the question of the consideration. The condition of the mortgage names no time for the payment of the debt. It may be assumed that it Avas due presently, or upon demand, and that there was, therefore, no consideration by way of extending time on the antecedent debt of the husband. The defendants contend, however, that on the faith of the mortgage there was an advancement made upon its delivery of £3,800, and that there were two other .comparatively small loans made at a later period. The plaintiffs shoAV conclusively that at the time of the delivery of the mortgage Mr. Linton’s current account was overdrawn about £2,300 and that, of the £3,800 passed to Linton’s credit on the delivery of the mortgage, £2,300 was absorbed in covering this overdraft. This, without an extension of time, was not a neAV consideration. They further contend that of the remaining £1,500, £1,000 represented the profits accruing to Linton from a sale that day made of stock held by him in the Imperial Bank of Persia; that £500 was the result of a discount or purchase of a “sold note” of Coates, Son & Co. of stock in the Pahang Exploration Company; that of the two later advances one was a similar transaction in the stock of the United States Debenture Corporation, and the other in shares of the Canadian Meat Company. There is evidence fairly tending to sustain all these assertions, and they meet but a qualified denial from Mr. Cooper. It must, however, be remembered that if the mortgage was delivered at all, it was as a general cover for past debts and future advances; and every one of the subsequent transactions is of such a character that it is
The trial court seems to have viewed the facts as we do, but proceeded on the theory that a subsequent payment had been made sufficient to discharge- any indebtedness created at the time, or after the mortgage was given; that it was therefore discharged. In this we think there Avas error. It Avould seem that the rule for the application of payments, where no direction is given by the debtor and no special application has been made by the creditor, is directly contrary to that applied by the trial judge; and payments should be applied first to the satisfaction of the earlier debits. (Norval, J., in State v. Hill, 47 Neb. 456.) But irrespective of this, there Avas a confusion by the trial judge between the consideration for giAdng the mortgage and the debt secured thereby. The debt secured was the Avhole of the debt of Linton to the bank, past and future, to the extent of 000. rThe new consideration Avas present and future advances, and the repayment of such present and future advances did not defeat the consideration Avhieh had by such advanc<s
- There is a final contention that no part of the consideration passed to Mrs. Linton, and that the contract was not made with’ reference to her separate estate. No discussion is needed to dispose of this argument. The cases already cited show that she need not be a party to- the consideration, and the mortgage itself was an express charge on her separate estate.
The judgment of the district court is reversed, and the case is remanded with directions to take an account of the amount due from Linton to the bank, and enter a decree of foreclosure for an amount in money of the United States equivalent to that debt, but not exceeding £10,000, with interest at six per cent'from October 21, 1889.
Reversed and remanded.
Clark v. Graham, 6 Wheat. [U. S.] 577; Runfelt v. Clemens, 46 Pa. St. 455; Warren v. Brown, 25 Miss. 73; Clark v. Thompson, 12 Pa. St. 274; Graham v. Long, 65 Pa. St. 385; Tully v. Davis, 30 Ill. 103; Myers v. Boyd, 96 Pa. St. 427; Rogers v. Adams, 66 Ala. 600; Dewey v. Campau, 4 Mich, 565; Buell v. Irwin, 24 Mich. 145; Keller v. Moore, 51 Ala. 340.