297 N.W. 899 | Neb. | 1941
The question for decision is whether the mortgagor or the mortgagee is entitled to receive rents from the lessee of a rooming house in Omaha, Douglas county, Nebraska, after decree of foreclosure and request for stay pending redemption or sale and confirmation, the mortgagor in default having given a written assignment of the possession
The facts are not in dispute. On March 26, 1924, defendant Lorena Katz, a widow, mortgaged the property for $20,000, which mortgage, for valuable consideration, was assigned to plaintiff. Thereafter, on April 26, 1929, an extension agreement to April 1, 1934, was executed by the parties. Defendant being in default and the mortgage extension past-due, on May 11, 1934, they executed another extension agreement payable in instalments until April 1, 1939. At the same time that the latter extension agreement was executed, and as a part of the same transaction, defendant made, executed, acknowledged and delivered to plaintiff a written assignment of the possession of the mortgaged property, and all the rents due or to become due from the lessee thereof, until the obligation was paid or until plaintiff was entitled to possession by order of the court or operation of law. The assignment provided that, if defendant were in default 30 days, she would deliver all existing leases to plaintiff who would then be the owner thereof. The extension agreement and the assignment, separate instruments, were both recorded in Douglas county, Nebraska, as provided by law, on June 12, 1934. On January 6, 1939, defendant having been in default since October 1, 1938, plaintiff sent a written notice to defendant, her attorneys, and Martha Young, lessee, demanding payment of rents to plaintiff as provided in the assignment. Defendant failed to comply with the demand or pay the delinquencies, and on March 13, 1939, plaintiff filed foreclosure proceedings in the district court for Douglas county, Nebraska, making Lorena Katz, mortgagor, and Martha Young, hereinafter called the tenant, parties defendant. The tenant had been in possession of the property as lessee, conducting a rooming house, for 15 years. The parties concede that she was a proper party defendant. Issues were joined between plaintiff and defendant; the tenant defaulted, and on May 20, 1939, a decree of foreclosure was entered finding that the allegations of plaintiff’s petition were true and
Defendant Lorena Katz appeals, contending that the trial court had no jurisdiction to enter such an order , in this action, and that its decree is contrary to law and equity.
The question of jurisdiction in a technical sense is not presented by the record as submitted to this court. By stipulation, defendant proceeded to trial upon a general denial without presenting the question of jurisdiction in any manner except in this appeal. “The district courts are
Defendant contends, relying upon Huston v. Canfield, 57 Neb. 345, 77 N. W. 763, that in a foreclosure action the court cannot divert the rents of the mortgaged premises from the tenant in possession claiming title under the mortgagor, except by the appointment of a receiver pursuant to statutory provisions. Of course, this contention is true unless the stipulation inter partes makes the rule otherwise. Section 76-235, Comp. St. 1929, provides: “In the absence of stipulations to the contrary, the mortgagor of real estate retains the legal title and right of possession thereof.” Thus, we come to the question whether a stipulation permissible by statute is valid and enforceable.
The chief controversy in Huston v. Canfield, supra, was
The court concludes that an assignment of possession and rents by the mortgagor to the mortgagee, effective upon default and given as consideration for an extension of a mortgage then in default, is not against the public policy of this state and is valid and enforceable. When an assignment of the possession and rents is lawfully executed by the mortgagor and, upon default, demand for its observance is timely made but refused,, parties plaintiff or defendant may file application for its adjudication in the foreclosure action still pending and, upon issues joined thereon, the court may retain the same for trial and award that relief to which the parties are entitled.
The decree of the trial court was correct, and it is
Affirmed.