Merriman v. Hyde

| Neb. | Jul 15, 1879

Lake, J.

Does the petition state facts sufficient to constitute a cause of action ? Although it may be true, as contended by the defendant, that the object of its framers was ostensibly to quiet the title obtained through the foreclosure sale, still it does not follow because it is inadequate for this purpose that it is not sufficient for some other kind of relief.

The subject matter of this litigation ought to have been included and settled in the foreclosure suit. Indeed, the defendant, who is the son of the mortgagor, was made a party to that action, but for some unaccountable reason there was a voluntary dismissal as to him beforé the entry of the final decree. However, being the nominal, and perhaps rightful holder of the equity of redemption, by a conveyance obtained prior to the commencement of the foreclosure proceedings, and unaffected by the decree, his interest is necessarily .made the subject of an independent suit.

It may be observed, too, that the prayer of this petition is both specific and general. By the former the plaintiff requests the court to quiet his title by adjudging the conveyance from the mortgagor to the defendant fraudulent and void as to him; and by the latter “ such further and other relief in the premises as may be agreeable to equity and good conscience.”

The petition shows that the mortgage in question, although executed and delivered in March, 1872, was not recorded until after the delivery of the deed, under which the defendant holds the premises. But, as against this failure to record his mortgage, it is charged that the conveyance to the defendant from his father was without consideration, and while he was still a minor, and that it was with the fraudulent intent, on the part of the grantor at least, to cheat the plaintiff out of his said security.

Now it is very clear'that these allegations, if made good by the proofs, furnish good ground for relief as against the defendant, who holds, at best, the mere equity of redemption by his deed from the mortgagor. A grantee under such circumstances could not take any advantage of the failure to record the mortgage, but his interest, whatever it might be, would be subject to it. In such case we apprehend the proper decree would be to fix a reasonable time within which the defendant could redeem, by paying the amount of the mortgage debt, and, in default of such payment, that he be foreclosed of all right, title, and interest in the premises, as against the plaintiff.

The judgment is therefore reversed and the cause remanded for further proceedings.

Beversed and remanded.

Cobb, J., having been of counsel, did not sit.