74 Neb. 251 | Neb. | 1905
On February 18, 1901, F. J. Greer executed to Shelley-Rogers Company a mortgage on certain cattle owned by laim to secure payment of his promissory note for $8,020.96, payable October 24, then next following. The mortgage was made duly of record, and the note at. its maturity, augmented by accrued interest, was extended so as to become due January 5, 1902. In December, before the maturity of the note as extended, a larger part of the cattle were shipped to the mortgagee, which Avas a live stock commission dealer at South Omaha, and sold, and the proceeds of the sale, amounting to $5,080.44, applied toward payment of this and other indebtedness, leaving 'an unsatisfied balance of $4,495.35. For this residue the mortgagee was desirous of obtaining payment or marketable paper, but it was agreed between the parties that the unsold residue of the cattle would not be adequate security for a sum exceeding $2,200. A mortgage upon the remnant of the herd to secure a note for that sum, and containing the usual covenants that the property described in it belonged to the mortgagor, free from prior liens, etc., was executed and delivered by Greer to the commission firm. There was thus left unprovided for, of the old indebtedness, $2,295.35, which was paid in part by a shipment of hogs, and afterwards further reduced so as to leave a residue of $1,742.53, which was put into a new note secured by a mortgage on real estate. Shortly after the settlement, the defendant in error became in the usual course of business in good faith, and for value, before maturity, the indorsee and owner of the $2,200 note and mortgage, which have never been paid, but Avhich have been several times renewed. The last reneAval was by a
We think the answer should be in favor of the defendant. The plaintiff’s claim arises solely out of the recitals in the note purchased by it, which could be effectual, if at all, merely as a pledge of a chose in action. • Now, besides the uncontradicted testimony of the maker, Greer, that these recitals were not made or authorized by him, and are therefore nugatory, the instrument to which they refer did not, at the time they appear as having been made, purport to be such a document as they describe. It was by its terms nearly a year and a half past due, and borp no evidence of being secured by mortgage, and it carried memoranda on its back indicating that three payments had been made upon it, aggregating the sum of $5,460.34. Certainly a more discredited piece of paper, or one less
Exceptions were taken to several instructions, but as we are of opinion that the verdict returned is the only one that the evidence would support, we have not felt called upon to discuss them, but recommend that [he judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
Affirmed.