87 Neb. 518 | Neb. | 1910
This is an action to foreclose a mortgage on 160 acres of land. A decree of foreclosure was rendered, and defendants appeal.
In 1891 the land was owned by one Nielsen, who with his wife, Nielsine Nielsen, and family resided upon it as a homestead. Nielsen died in 1891, leaving surviving him his wife and ten children. In September, 1892, the widow procured a decree from the county court of Custer county under the so-called “Baker” decedent act, setting apart the entire estate in the premises to her in fee simple as a homestead. In 1893 Mrs. Nielsen sold the premises to John Hanson and conveyed the same to him by warranty deed, and Hanson and wife gave a mortgage back to Mrs. Nielsen to secure the sum of $800, part of the purchase money. This action is brought by the heirs of Mrs. Nielsen to foreclose this mortgage. Hanson immediately took possession of the premises, and claimed to own the same subject to the lien of this mortgage until September 3, 1902. In October, 1895, one Griffith purchased the premises at tax sale, and in December, 1899, he began an action to foreclose the tax lien, making Hanson and wife, C. P. Sheldon, and Niel Nielsen parties. Hanson and wife were served personally and Sheldon appeared. Nielsen was dead and none of his heirs were made parties. In 1901 a decree of foreclosure was rendered, the premises ordered sold, and afterwards the premises were sold to Paul H. Marlay, the gale confirmed, and a deed executed by the
The defendants’ view is that the action of the county court was void in so far as it attempted to confirin in the widow a fee simple title to the land, because both the Baker act and the curative act (laws 1895, ch. 32) are void; that her deed to Hanson conveyed only a life estate in the premises, which expired with her life; that the purchase money mortgage was a mortgage upon the life estate only, and that when that terminated the mortgage lapsed; that Marlay, having derived his title from an independent source, was not in privity with Hanson and had a right to resist the mortgage. The brief further argues that since in the foreclosure of the tax lien Sheldon by cross-bill set up a prior mortgage given by Hanson, which was foreclosed by the same decree, the plaintiffs are not entitled to bring this action, but could only have an action to redeem from the first mortgage.
In the case of Draper v. Clayton, ante, p. 443, the Baker act and the curative act were both considered in a like controversy, and were held to be without effect upon the rights of the parties. Mrs. Nielsen’s deed to Hanson, therefore, conveyed only a life estate, and the mortgage incumbered no greater estate than that conveyed. The plaintiffs, however, occupy a dual position with reference to the land and the mortgage; they are the owners of the mortgage debt by inheritance from their mother, and they are also the legal owners of the land by
In their brief they say they are content that Hanson and* his grantees have the title to the land, and that all they ask is the agreed price. We see no reason why they should not have the right to confirm the title by ratifying and adopting the mortgage as a valid lien upon the whole estate, unless in some manner they are prevented from so doing by the tax foreclosure and purchase.of the land at sheriff’s sale. Whether these proceedings affected their rights we will now consider. When in February, 1901, Marlay became the owner of Hanson’s interest in the premises by virtue of the quitclaim deed, it became his duty to pay the taxes. ' His subsequent purchase at the tax foreclosure sale was in legal effect a redemption of the premises for his own benefit or for the benefit of his covenantees, and the sheriff’s deed, so far as the taxes were concerned, conveyed no better title to him than he had acquired by his quitclaim deed. It appears incidentally in the evidence that Sheldon’s mortgage was attempted to be foreclosed in that action, but the defendants do not now plead any rights derived by or under it, make no mention of it except in their brief, and base the whole defense upon the invalidity of plaintiff’s mortgage, and upon the alleged independent title acquired by the sheriff’s deed and the possession taken thereunder. The plaintiffs’ mortgage was dated December 1, 1893; it became due ou the 1st day of December, 1898. This action was begun within ten years from its maturity, and, hence, the action is not barred by the statute.
The petition contains the formal allegations that no proceedings at law have been had for the recovery of the amount due on the mortgage or any part thereof, nor has any part thereof been collected or paid. There is a general denial in the answer. Defendants strenuously insist
It is admitted that the sum. of $1,724.25 is due and unpaid on the mortgage; that the mortgage was inherited by the plaintiffs from their mother’s estate; that they have never sold or assigned the note and mortgage and are now the owners thereof. The note itself was apparently barred by the statute of limitations. These admitted facts afford circumstantial evidence to some extent of the truth of the allegation. The record fails to show that this objection was called to the attention of the district court. No error affecting defendants’ substantial rights is apparent.
In this state of the proofs, we feel bound to apply the provisions of section 145 of the code that “the court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”
The judgment of the district court, therefore, is
Affiraiho.
