85 Neb. 850 | Neb. | 1910
On the 14th day of October, 1908, the plaintiff began this action in the district court for Johnson county to foreclose a real estate mortgage upon certain lands in that county, executed by the defendants Charles M. Chamberlain and Edith R. Chamberlain, husband and wife. The remaining defendants were made parties because of claiming some interests in the real estate, which the plaintiff alleged were inferior to the lien of his mortgage. James A. McPherrin, at his own request, was afterwards made party, and also alleged two mortgages
To the answer of Charles M. Chamberlain the plaintiff replied that, in a former action pending in the same court, in which the National Bank of Commerce .was plaintiff and the said Charles M. Chamberlain was defendant, and said Edith R. Chamberlain, as intervener,
Upon the trial the court found that the only consideration for the plaintiff’s mortgage was a claim of $154.29, for goods sold by the plaintiff to the defendant Charles M. Chamberlain, and that the mortgage was fraudulent and void as to creditors. The mortgages of the defendant McPherrin were foreclosed as prayed, and the court found that the judgment of the National Bank of Commerce was dormant and not a lien, and that the defendant Dew had a valid judgment, amounting then to $7,254.11, which was a valid lien upon the premises, subject to the homestead interest of the defendant Chamberlain and the respective liens of plaintiff and defendant McPherrin, and that the value of the property was $3,500; that the judgments against Charles M. Chamberlain were first liens “upon said homestead premises, of the defendants Charles M. Chamberlain and Edith R. Chamberlain, after their said homestead right of $2,000 has been taken from said premises,” and “that out of the $2,000 homestead right there shall be first paid” the plaintiff’s claim, as found by the court, and the Mc-Pherrin mortgages. And, “after the payment of the said sums to the said plaintiff and the defendant James A. McPherrin, the balance of the said $2,000 right of the defendants Chamberlain shall be paid to the said Charles M. and Edith R. Chamberlain.” The plaintiff and the defendant Charles M. Chamberlain have appealed to this court.
We have already indicated that the trial court found that the mortgage was valid as between the parties, but was fraudulent and void as to creditors, and also found a partial failure of epnsideration, it appearing to be the opinion of the trial court that the mortgage was invalid as a security for the bank deposit which was in Mrs. McLanalian’s name. Owing to the numerous conflicting claims of the parties and the. disconnected condition of the evidence, we have found it necessary to devote unusual care to flie consideration of these two points in the findings of the court, and we are constrained to say that we are unable to find in the evidence a basis for the conclusion of the court thereon. We cannot find that the note and mortgage were given in settlement of the account of Mr. McLanahan or of the deposit in the name of his wife. The evidence in regard to the consideration for the mortgage is to be found in the testimony of Mr. Chamberlain and Mr. McLanahan. The mortgage was given on one year’s time, without interest, and Mr. Chamberlain does not give any other reason for executing the mortgage or any explanation of the purpose for which it was executed than that testified to by Mr. McLanahan. He denies that he authorized its delivery, but he does not deny that he executed it for the purpose of securing these two claims. The two claims, together with interest, would amount, at the time of the maturity of the mortgage, to very nearly the amount of the mortgage. There is a small variance, whether the interest be computed at the rate of 7 per cent, or 8 per cent. In the one case the claim would amount to a little more than the mortgage, and in the other to a little less. The variance in the amount is sufficient, however, to indicate that the mortgage was not given in settlement of the claims, but rather to secure them, and Mr. McLanahan’s testimony is en
There is much said in the evidence and also in the briefs in regard to the statute of frauds. It seems to have been thought by some that the promise by Mr". Chamberlain made to Mr. McLanahan to secure the deposit in the bank in the name of Mrs. McLanahan was a promise to ansAver for the default of others and must be in writing, but the note and mortgage themselves constitute a sufficient Avriting for this purpose. The evidence given by the parties upon this point does not go to the form or sufficiency of the writing, but to the consideration, which may always be inquired into; and we do fiot see how the statute of frauds has any application to this question. There is not much evidence as to any distinction between the property and estate of Mr. McLanahan and that of his Avife. He testified that he deposited this money in this bank in his wife’s name because he had money deposited in another bank in his own name, and he wanted to keep the accounts with the two banks separate. The evidence sIioavs that he acted in all respects for his wife, so far as she was interested, and there is no other evidence on this point. It was this particular deposit that Mr. Chamberlain was
The finding that this mortgage was fraudulent and void as against the creditors, so far as we can see, is equally unsupported by the evidence. The claims of Mr. and Mrs. McLanahan were in good faith. This is not questioned by any one. The mortgage which was received by them was security, and, as we have already seen, was substantially equal to the amount of their claims. The difference, if any, depended upon the rate of interest computed, and would in any event be insufficient to furnish a badge of fraud. This mortgage was made and recorded before the date of the Dew-judgment, and we are unable to see upon what theory it should be paid out of the homestead exemption. The homestead laAv is to be liberally construed to furnish a home for Mrs. Chamberlain and her children, and it has been many times determined that the homestead exemption against a judgment is to be allowed over and above all liens that are prior to the judgment. A mortgage executed and delivered after the lien of a judgment had attached Avould of course be subject to that lien. The judgment lien is upon the excess value of the property over and above the $2,000 homestead right and prior liens. Such a judgment lien- cannot be diminished or affected by subsequent liens, whether by judgment or conveyance.
The date of the judgment of the defendant Florence M. Dew was May 11, 1903, more than five and one-half years before the commencement of this action. The defendant Chamberlain has made reply to her answer herein, in which he seeks to have her judgment set aside for alleged irregularities in obtaining the same. These irregularities consist mostly in alleged errors of the court in the trial of the former action, and neglect of counsel employed by
The defendant Florence M. Dew was the widow of Robert L. Butler, deceased, and as such was duly appointed administratrix. She was married again after the recovery of the judgment and before the commencement of this action. Section 5053, Ann.-St. 1909, provides: “When an unmarried woman who is administratrix alone, or jointly with another person, shall marry, her marriage shall extinguish her authority as administratrix.” It is now insisted that her authority as administratrix having been extinguished by her subsequent marriage, she could not in this action defend the lien of the judgment which she had recovered. The statute quoted was section 13, ch. VII of the “Act providing for the settlement of the estates of decedents,” etc. Laws 1860-1861, p. 85. The act of 1871 (laws 1871, p. 68) was a general act removing the disabilities of married women, and of course repeals all former acts upon that subject inconsistent therewith. In Omaha H. R. Co., v. Doolittle, 7 Neb. 481, the court said: “In Pope v. Hooper, 6 Neb. 178, 187, it is held that the act of 1871 wholly removed the common law disability of married women.” Section 17 of the code was also enacted prior to the law of 1871. That statute assumed that married women could not maintain an action in the courts, and provided that the statute of limitations should not apply to married women. In Murphy v. Evans City Steam Laundry Co., 53 Neb. 593, it was held that this provision was repealed by implication by the act of 1871. By the same reasoning it would seem that by the present statutes a married woman can act as administratrix. At all events, Mrs. Dew was qualified to defend in this case the judgment which as such administratrix she had ob
This was the first judgment lien as found by the court. It was entered May 11, 1903. It was subject to plaintiff’s mortgage and could not affect the lien of that mortgage. Plaintiff’s mortgage should therefore be collected out of the excess value of the property over the $2,000 homestead right, if such excess was sufficient for that purpose; if not sufficient, the homestead would be liable for the deficiency. The McPherrin mortgages Avere both subject to this judgment and could not affect the lien thereof.
The excess value of the property over the $2,000 homestead right should be applied, first, to payment of the costs herein; second, to the satisfaction of plaintiff’s mortgage; third, to the satisfaction of the Dew judgment; and, fourth, upon the McPherrin mortgages. After so applying the proceeds not exempt, the remainder of the plaintiff’s mortgage and the McPherrin mortgages should be satisfied out of the homestead exemption, the balance of the homestead exemption to be paid to Mr. and Mrs. Chamberlain.
As already suggested, the plaintiff’s claims Avere not surrendered or extinguished by the giving of the mortgage as security therefor. He should therefore recover the amount of his original claims as fixed by the trial court, with interest thereon at 7 per cent, per annum.
It does not appear to be necessary to discuss the effect of the former litigation as barring the defendants’ right to question the validity of plaintiff’s mortgage.
We cannot extend this opinion for an exhaustive discussion of the numerous questions raised as to the admis
To prove the signatures to the note the plaintiff called Mr. Chamberlain, who of course was an interested witness, and, after he had asked him as to these signatures, the witness’ counsel desired to cross-examine the witness as to the delivery of the note and mortgage and the circumstances surrounding the giving of the securities. The court did not exceed his discretion in refusing to allow this cross-examination. The court excluded the written contract as to attorney fees in obtaining the Dgav judgment, and refused to order a copy of the contract so excluded to be furnished for use in making the bill of exceptions. Of course counsel should be alloAved to make ihe contract so offered a part of his bill of exceptions. In no other way could lie present the ruling thereon to this court for revieAV. This deficiency could have been supplied upon the settlement of the bill, and counsel should have then insisted upon his rights in that regard. In the view of the case Avhich Ave have already expressed, this contract could not affect the results of this controversy.
Some of the judgments against Mr. Chamberlain are attacked on the ground that no summons Avas served on defendant and no appearance made. Service was made by copy of summons, and the first objection is that the service was not at the usual place of residence of defendant. The defendant had left the state and his Avliereabouts Avere unknown. Ilis wife and minor children continued to reside in the dAvelling in Tecumseh Avhere defendant had resided with them previous to his hasty departure. There is no evidence that he made any attempt to remove his family or to acquire any other residence for himself. The presumption that his residence is Avith his family is so strong as to overcome this objection, and the trial
The return on the summons in the case of John Ward, receiver for the Chamberlain Banking House, in which judgment was entered January 7, 1903, for $706.50, states that it was served by leaving “at his last known place of residence a true and certified copy,” etc. In Ruby v. Pierce, 74 Neb. 754, the syllabus is as follows: “An officer’s return to a summons, showing service by leaving at the ‘last’ usual place of residence of the defendant, does not show a compliance with the statute authorizing service by leaving a copy at the usual residence of the defendant, and a judgment based thereon is void for want of jurisdiction,” and the opinion is to the same effect. Although this holding would to the writer appear to be somewhat technical, yet it must be considered as settling the law of this state upon that question. The original process in an action at law is the foundation of all future proceedings in the case. If the service is made in compliance with the statutes, the defendant is bound to take notice of everything that is done in the case thereafter. The statute is simple, and there is no reason for excusing the officer from complying with it. The service in this case is a much further departure from the method prescribed by the statute than was the service in the case just cited. The officer must know the usual place of residence of the defendant or lie cannot' serve* the summons by a copy left thereat. In this case he certified that he left the copy at the last place which he knew to be the residence of the defendant. He does not say, nor are there any words in the return that indicate, that he left the copy of the summons at the place of residence of the defendant at the time of the service. In fact, the implication from the return is that the place where he left the copy was not the residence of the defendant at that time. Under the holding in Ruby v. Pierce, supra, the judgment rendered on such a service is absolutely void.
The judgment rendered in an action between the same
It was also objected that the plaintiff did not prove that there had been “no action at law to recover his claim.” The petition contained the allegation; and we think the evidence in the record is sufficient to put the defendant upon proof of the affirmative of the proposition which he maintains.
The decree of the district court is reversed as to the issues tendered by the plaintiff, and as to priority of the liens of McPherrin’s mortgages and of the Dew judgment and the judgments of John Ward, receiver, and the cause is remanded, with instructions to allow’ amendments and take further evidence, if necessary, in accordance with this opinion, and in all other matters the decree of the district court is affirmed. The costs of this appeal will be taxed, one-half against the plaintiff and one-half against the defendants Charles M. and Edith R. Chamberlain.
Judgment accordingly.