96 Neb. 581 | Neb. | 1914
In August, 1887, one Frank P. Brown was the owner in fee simple of the quarter section of land involved in this litigation, and then executed and delivered to Parrish & Potter his mortgage deed Avhereby he conveyed the land to secure the payment of á loan of money at that time made to him by the said parties. Aftenvards, the said mortgagor being in default, the said mortgagees began an action in the district court for Holt county to foreclose the mortgage, and obtained a decree of foreclosure
The decree of the court recited that there was due service upon the defendants, but the complete record of the foreclosure, which Avas put in evidence, does not show the filing of any affidavit for service by publication, and, that being the case, this record furnishes • sufficient prima, facie ■evidence that no such affidaAdt was filed, in the absence of any affirmative evidence of the filing of the same. It appears that no other service was had upon the OAvner of the legal title at that time, and the proceedings therefore would be insufficient to foreclose .that title. The trial court entered a judgment in favor of the plaintiff quieting his title in the land as against the lien of the defendant’s mortgage. In this Ave think the court was mistaken.
The mortgagees purchased the land at the. foreclosure sale in good faith, supposing that the title was complete. That title having failed, the mortgage was Avholly unpaid, and the purchasers at that sale and their grantee, having taken such possession as the circumstances would admit, and having paid the taxes thereon for more than 10 years prior to the commencement of this action, must be considered as mortgagees in possession. The owner of the legal title cannot cancel the lien of a mortgagee in possession Avithout payment of the mortgage.
The judgment of the district court is reversed and the •cause remanded, with directions to allow such amendments and take such further evidence as may be necessary, and ascertain the amount of the mortgage and interest of the defendant Colledge and his tax lien and subsequent taxes paid by him, and enter a decree foreclosing his lien for the same, with interest thereon, and adjusting and determining the rights of the other parties to this litigation.
Reversed.