14 Neb. 153 | Neb. | 1883
This is an action for the specific execution of an agreement to execute a mortgage upon certain real estate, and for a decree foreclosing the same, and for general relief.
It is alleged in the petition in substance that on or about the 22d of September, 1879, Andrew Bevins purchased the premises in controversy, taking the title thereto in the name of Alice Bevins, his wife; that about the same time the defendants applied to the plaintiff for a loan of six hundred dollars for the purpose of erecting a house on the lot in question; that it was agreed that the defendants should have the sum required, out of a note which Bevins, as an attorney, held for collection, the defendants to secure the
The answer alleges in substance that Alice Bevins purchased and paid for said premises; that plaintiff loaned Andrew Bevins the sum named, and agreed to take his (Bevins’) note therefor, due in one year, and credit him with fees due for legal services; that afterwards the parties settledj and it was agreed that $250 was a reasonable sum for the aforesaid services; that about November 10th, 1879, the plaintiff requested Bevins to give him a mortgage, due in one year, which he refused, but promised to give him one due in three years if his wife would consent; that such mortgage was executed November 24th, 1879, and recorded in the plaintiff’s absence; that in January, 1880, the plaintiff refused to accept said mortgage and canceled the same, taking Bevins’ note for $350, due in one year.
The answer denies specifically that Alice Bevins ever agreed or authorized any person to agree to execute a mortgage upon said premises, except as above stated, and alleges that she never knew of any proposal for a mortgage due in one year, until January, 1880.
It is not seriously contended that more than $350 was due from Bevins to the plaintiff on the 10th day of Nov., 1879, so that the only question necessary to be determined is, does the proof warrant a decree against the wife for the execution of a mortgage due in one year from November 10th, 1879.
It is a well settled rule of equity that a parol contract for the sale and conveyance of real estate will, if the party seeking relief has performed, or so far performed the contract as to entitle him to the relief, be specifically enforced. And if there has been a full performance on one side, the other cannot insist upon the statute as an objection to the enforcement of the contract. These principles undoubtedly apply to mortgages.
If it was clearly established that Bevins was the owner of the lot upon which the house was erected, and that the wife merely held the legal title to the same, and that the husband had borrowed the money from the plaintiff under an agreement to execute a mortgage upon said premises to secure the sum borrowed, the court would have no hesitation, after a full performance on the part of the plaintiff, to compel the execution of a mortgage in pursuance of the contract. But there is a defect in the proof on these points.
There is no pretense that the title to the real estate in question was placed in the wife’s name for the purpose of defrauding creditors, nor that any of the money borrowed
The case is similar in that regard to that of Morgan v. Bergen, 3 Neb., 209.
The decree for a mortgage due November 10, 1880, and foreclosing the same, is therefore reversed. It is very clear, however, that the satisfaction of the mortgage executed by the wife was made under a promise from Bevins that his wife would execute a mortgage due in November, 1880.
As these facts clearly appear in the pleadings and proof, the satisfaction will be set aside under the prayer for general relief, and that mortgage be reinstated in full force.
In the case of Leggenwell v. Fryer, 21 Wis., 392, upon facts somewhat similar to the case at bar, such relief was denied; but justice, the aim and object of all law, requires such cancellation. A decree will be entered in this court in conformity to this opinion.
Decree accordingly.