41 Neb. 867 | Neb. | 1894
On or about the 6th day of December, 1877, one Harriet Jones, now deceased, being the owner in fee-simple of lot 1, in block 4, in Shull’s addition to the city of Omaha, gave her promissory note for the sum of $500 to John C. Morrow, one of the plaintiffs in error, and to secure the payment of said note she, together with her husband, William D. Jones, executed aud delivered to said Morrow a mortgage upon said lot. On the 12th day of October, 1880, Morrow commenced an action in the district court of Douglas county to foreclose said mortgage, service of summons being made by publication, and on the 6th day of December, 1880, a decree was entered in said cause for the sum of $625.25 and costs, and the premises were ordered sold for the payment thereof. An order of sale was thereafter issued, and on the 12th day of February, 1881, said real estate was sold to one Lewis S. Reed for $611, that
“Omaha, Neb., February 21, 1881.
“Harriet Jones — Dear Madam: I am instructed by my client, J. C. Morrow, to write and inform you that on sale in foreclosure of mortgages of your property, the same was sold for $611 (the appraisement was $530), leaving a deficit on the mortgage and cost of $125, for which we will still have a judgment against you. Since the sale we have concluded to take the property and cancel the judgment if you desire to do so by signing to Mr. Morrow your equity of redemption, and thus enable him to redeem from the purchaser. He also instructs me to say to you that at any time in the future you desire to redeem your property from him you can do so by paying amount of mortgage and costs with interest. If you desire to avail yourself of this offer, you can do so by signing and ack. the inclosed assignment of your equity of redemption and quitclaim deed to Morrow. You will acknowledge the same before the clerk of a court of record and return the same to my address, and I will send you the certificate of cancellation of mortgage. If this is done, it must be done at once, for the sale comes up for confirmation on March 5, 1881, and after the confirmation of sale, under our stat
“Your ob’t serv’t, James F. Moeton,
“Att. for J. C. Morrow.”
This letter, together with the deed and the assignment of the equity of redemption, was in due time received by Plarriet Jones, who accepted the proposition, and on the 28th day of February, 1881, executed and acknowledged the quitclaim deed sent to her for that purpose, returned the same to said Morton, who, upon receipt thereof, delivered the same to said Morrow, who accepted and placed the deed upon record. On February 26, 1881, the purchaser of said lot . procured an order to show cause why said sale should not be confirmed, and on March 5, 1881, Morrow filed with the clerk of the district court exceptions to the confirmation, also a receipt, signed by himself, acknowledging full satisfaction of the decree of foreclosure. On the 9th day of said month said Morton, as the attorney for Morrow, wrote and transmitted by mail to said Harriet Jones another letter, acknowledging the receipt of the quitclaim deed, and urging her to execute and return the assignment sent to her with the deed. Upon the receipt of this letter Mrs. Jones executed the assignment of the equity redemption which had been previously sent her as aforesaid and returned the same to Morton, who, immediately upon the receipt thereof, delivered the assignment to Morrow, who filed the same in said cause. Subsequently the motion to confirm the sale was overruled and the sale set aside, and Morrow, in pursuance of said agreement, redeemed said lot, and claims to be the owner thereof. Im
It further appears that said Harriet Jones obtained a divorce from said William H. Jones, and subsequently married one Harry Merriam; that on the 30th day of October, 1888, and prior to the commencement of this suit, Harriet Merriam, formerly Harriet Jones, tendered to said Morrow, and offered to pay him, the full amount due him on said mortgage, after deducting the amount of rents and profits collected by him in excess of taxes by him paid, and demanded of said Morrow a deed for said lot, who refused to receive the money or execute a deed as requested. Harriet Merriam, mée Jones, thereupon brought this action against John C. Morrow and F. M. Morrow, his wife, to-have the deed declared a mortgage and to redeem the property and compel said Morrow to execute and deliver to her a deed to said lot. After the beginning of the action, the plaintiff died, leaving Nora A. Jones, her daughter, sole and only heir at law, who was a minor over- the age of fourteen years. Mary A. Elliott is the duly appointed guardian of said minor, and this action was revived in the name of said Nora A. Jones.
The trial court, upon the issues joined, made a finding that the plaintiff was entitled, and has the right, to redeem the real estate in dispute from the mortgage, on payment of such sum or sums as are due on account of the principal and interest of said mortgage, and the costs of foreclosure proceedings, and all repairs and valuable improvements made by said John C. Morrow upon said premises, after deducting all sums received or collected by him as rents for the use of the premises. The court also appointed a referee to state the account between the parties. On the coming in of the report of the referee a decree
It is claimed, in the first place, that no consideration passed to the plaintiff in error, John C. Morrow, for the making of the proposition or agreement, and, therefore, the promise is not binding in law. It is elementary that mutual. promises constitute a good consideration for a contract. By the written proposition submitted to Mrs. Jones she was promised the right to redeem the property at any time by paying the amount of the mortgage and costs, with interest, in case she would execute a quitclaim deed to the premises and an assignment of her equity of redemption. The deed and assignment were duly executed and delivered, and they certainly constitute a valid and binding consideration for the promise and agreement made by Morrow. Without the deed and assignment he could not have redeemed the premises from the foreclosure sale, but would, in all probability, have been forced to lose $125 of his debt. By the new arrangement he was to receive the full amount of his debt, interest, and costs, in case Mrs. Jones should redeem from the morlgage.
The second point, and the one most relied upon for a reversal, is that the promise is void under the 3d, 8th, and 25th sections of the statute of frauds, inasmuch as the proposition to redeem was made without Morrow’s knowl
“Sec. 3. No estate or interest in land, other than leases for a term not exceeding one year, nor any trust' or power over or concerning lands, or in any manner relating thereto^ shall hereafter be created, granted, assigned, or surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same.”
“Sec. 8. In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: First — Every agreement that by its terms is not to be performed within one year from the making thereof. Second — Every special promise to answer for the debt, default, or misdoings of another person. Third — Every agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry. Fourth — Every special promise by an executor or administrator to answer damages out of his own estate.”
“ Sec. 25. Every instrument required by any of the provisions of this chapter to be subscribed by any party may be subscribed by his agent, thereunto authorized by writing.”
It is true that Mr. Morrow gave no written authority to his attorney to make, on his behalf, the proposition lié did; yet we are unwilling to yield assent to the doctrine that the agreement is for that reason void and unenforceable. By the statute of frauds, a binding contract for the sale of lands cannot be executed by an agent of the land owner, unless he be authorized by waiting. (Morgan v. Bergen, 3 Neb., 209.) The statute does not require that a contract for the sale of bin Is must be signed by the purchaser or by his agent authorized in writing; An agent may contract for his principal for the purchase of land, even though his authority to do so is not in writing. In
It is next argued that the right of redemption should have been exercised within a reasonable time after the execution of the deed, and. this action cannot be maintained, inasmuch as no offer to redeem the premises from the equitable mortgage was made until eight years had elapsed. No adjudicated case has been cited by the able and astute
We will next consider the objection that this action was improperly revived in the name of Nora A. Jones. As elsewhere stated, the suit was originally brought by Harriet Jones, afterwards Merriam, the grantor in the deed, and that during the pendency thereof she died intestate, leaving her surviving one child, the said Nora A., who was the deceased’s sole and only heir at law, and in whose name these proceedings were revived. In the first place we remarked that neither the order of revivor, nor the pe
It is also insisted that the referee and court both erred in charging the plaintiffs in error with the rents and profits received from the real estate subsequent to the execution of the quitclaim deed. In argument it is said that from the time the deed was executed Morrow was the holder of the legal title, and entitled to the legal possession, and use of the property, and at most he was only chargeable for the rents and profits for a reasonable time after the making of the conveyance. As we have already seen that, although the deed was absolute in its terms, nevertheless the relation of mortgagor and mortgagee existed between the parties to the instrument; and it is the settled-law of this state, pro
Lastly, it is urged that the referee did not allow Mr. Morrow the full amount of money expended by him for repairs on the property. The referee allowed him $94.50 for repairs. Whether this sum is insufficient or not we are unable to decide, since the evidence upon which the referee based such finding is not incorporated in the bill of excep
There being no reversible error in the record, the decree is
Affirmed.