Pitman v. Ireland, No. 11,478

No. 11,478 | Neb. | May 8, 1902

Ames, C.

Benjamin Lammers procured a loan from the Showalter Mortgage Company, a corporation, and to secure its payment executed and delivered bis note and a mortgage on certain real estate. By various mesne conveyances the lands were conveyed to the plaintiff in error Pitman, and by sundry mesne assignments the note and mortgage came to the defendant in error, Ireland. Ireland brought this action to foreclose the mortgage, to which be made the bolder of the title, Pitman, sole party defendant. Lammers applied for leave to intervene for the purpose of pleading usury, and his motion was denied. He and Pitman bring the case here, assigning such denial for error.

In our opinion the application should have been granted. The pleadings show that Pitman acquired the land by an unconditional deed of general warranty, making no reference to the mortgage. It is elementary law that when the grantee in such a conveyance is attacked by a claim which, if maintained, may divest him of bis title, be has a right to “vouch” his warrantor, as it is called; that is, be may notify the latier of the pendency of the suit and require him to come in and defend at his peril, if lie fails so to do, of being concluded by its results in a subsequent action against him upon the covenants in his deed. Rawle, Covenants for Title, 228, et seq. Now the application of Lammers for leave to intervene, was intended to accomplish precisely this purpose, which was necessary as well for his protection as for that of his warrantee, and the latter not less than the former was entitled to have the amount of the incumbrance diminished by any lawful means, instead of being driven to his personal action upon his covenants.

It is recommended that the judgment of the district court be reversed, and the case remanded for further proceedings according to law.

Duffie and Albert, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the case remanded for further proceedings according to law.

Reversed and remanded.