93 Neb. 579 | Neb. | 1913
James H. Mallory and Mary E. Mallory were husband and wife. In 1903 Mr. Mallory owned some land in South Dakota, and one White owned a quarter section in Dixon
Appellee now urges that the case is here for trial de novo, and asks us to review that part of the. decree which ordered the payment of the amount due the insurance company out of the general fund arising from the sale. This we cannot do. None of the parties has appealed from that part of the decree. Where a decree in a suit in equity disposes of more than one distinct and separate issue litigated in the court below, and an appeal is prosecuted by one of the parties as to one of such issues only,
Appellee also urges that as no answer was filed to the petition of the guardian ad litem filed September 26, 1910, appellant Milligan was not entitled to oiler any evidence in opposition thereto. Counsel contends that there are two methods, either of which might have been pursued by the guardian ad litem, viz., by petition or motion; that, having chosen to pursue the former, the hearing should have been controlled by the general rules as to pleadings. All persons claiming any interest were already before the court. No new parties were attempted to be brought in. The pleading was not verified, nor was any order for making up issues made by the court, or requested by the guardian ad litem. Aside from the name which the guard
The only question we are called upon to decide is as to the money ordered to be paid to the bank. Upon this point the appellant Milligan contends that he purchased the curtesy estate from Mr. Mallory March 30, 1910, for an adequate consideration and without notice of appellee’s claim. At the time he purchased the curtesy estate the decree of foreclosure had beeu entered. Mr. Mallory was a party to the suit. The order of distribution had not yet been made. Milligan knew, at the time he made the purchase, that the title to the land was in Mrs. Mallory at the time of her death, and hence was then in her legal heirs, the minor defendants, and that Mallory had only a curtesy interest therein, and we think he should be held to have had full knowledge that all he could take under his purchase was such interest as Mr. Mallory should be found, upon the final order of confirmation and distribution, to have had at the time of the entry of the decree.
His second contention is that Mallory was not indebted to the estate. It is true that at that time he was not, strictly speaking, indebted to the estate, but he was the principal debtor to the bank upon the note secured by the mortgage of his wife. Their relations then were: Mallory was indebted to the bank, and the estate was surety upon that indebtedness. Until the property was sold by reason of Mallory’s failure to pay his obligation, the relation of debtor and creditor did not exist, but as soon as the sale was made that relation arose, and he then became such debtor.
His third contention is that, if the money was given or loaned to Mallory or mingled with his funds, it was after-wards expended by him in making permanent improvements upon the premises. This contention is not sustained by the evidence.
His fourth contention is that more than four years had elapsed since the money was given or loaned, if given or loaned at all, to Mallory, and hence was barred by the
A careful examination of the record fails to disclose any error, and the judgment of the district court is therefore
Affirmed.