Omaha Loan & Trust Co. v. Kitton, 58 Neb. 113

Omaha Loan & Trust Co. v. Kitton

58 Neb. 113 | Neb. | 1899

Ragan, C.

This is an appeal by Edwin D. Kitton from a decree of the district court of Douglas county foreclosing an ordinary real estate mortgage at the suit of the Omaha Loan & Trust Company. The trust company in its petition alleged the execution and delivery by Kitton to it on July 1, 1892, of a principal note of $3,200, due five years after date, drawing interest at six per cent per annum, payable semi-annually, and evidenced by coupons, and all secured by real estate mortgage;, that before the maturity of such mortgage debt, or any part of it, the trust company sold and assigned it to Louisa A. Corbett, guarantying the payment of principal and interest; that Kitton made default in paying three of the coupons of said loan, and that the trust company, in pursuance of its contract of guaranty, paid said coupons and took them up. The suit was to foreclose the mortgage for those three coupons subject to the principal unmatured debt. Kitton, by his answer, denied the assignment of the mortgage to Corbett and specially denied that there was due to the trust company the amount *115claimed by it in its petition, alleging that he had paid it $50, which it had not credited. After this answer was filed the trust company admitted that Kitton had paid the $50 alleged by him in his answer, credited the same on the coupons sued on, and demanded judgment on the pleadings, which the court aivarded it.

If the trust company had never parted with the title to the principal debt secured by the mortgage, but had owed it all at the time this suit was brought, we know of no reason why it might not have foreclosed for the unpaid coupons subject to the unmatured principal. The pleadings showed upon their face that the principal of the debt secured by this mortgage ivas not due when this action was brought. The averment, then, in the trust company’s petition that it had sold and assigned this principal debt to Corbett was an immaterial allegation and one that the trust company was not required to prove in this case in order to be entitled to decree. The effect of the answer of Kitton as to the amount due the trust company is that the amount claimed to be due by it was correct, except the $50 which Kitton alleged he had paid. The trust company, by admitting in its motion the payment of this $50 and crediting it on Kitten’s coupons in suit, was the same in effect as if the trust company had taken decree for all it claimed and then remitted the $50, and had this been done, the record would have supported the decree. The judgment of the district court is

Affirmed.