62 Neb. 665 | Neb. | 1901
This action was instituted by Marion Plummer against Barton Park, Edmond Bonneau, and others to foreclose a real estate mortgage. The court, upon the issues joined, found in favor of the plaintiff and awarded him the relief for which he prayed. There was also a decree in favor of the defendant Park foreclosing a second mortgage upon the- land described in the petition. The two decrees were rendered at the same term of court, but not upon the same day. This appeal is prosecuted by Bonneau. His objections to the decree foreclosing the senior lien will be first considered. They are (1) that the evidence does not establish plaintiff’s ownership of the mortgage; and (2)
The second objection to the decree, namely, that there is a lack of evidence tending to show that no action at law was commenced to recover the mortgage debt, will have to be sustained. It has been several times determined by this court that the statement required by section 850 of the Code of Civil Procedure to be inserted in a petition to foreclose a mortgage is an essential averment which must be proved if put in issue. Jones v. Burtis, 57 Nebr., 604; Kirby v. Shrader, 58 Nebr., 316; Miller v. Nicodemus, 58 Nebr., 352. These decisions must be regarded ás conclusive; the question which they decide is now at rest. The plaintiff produced no evidence to show that he had not commenced a law action to recover the mortgage debt and, consequently, the judgment in his favor must be reversed.
We turn now to the other branch of the case. The second mortgage contains this provision: “But if said sum of money or any part thereof, or any interest thereon is not paid when the same is due or if the taxes and assessments against said premises are not paid at or before the time the same by law become delinquent, or if said mortgagors shall fail to keep and perform any of the contracts herein contained on their part to be kept and performed, then the whole of said sum and interest shall immediately become due and payable.” The answer and cross-petition of the defendant, Barton Park, was filed February 13, 1897. At that time the taxes charged against the mortgaged premises for the year 1895 were unpaid. For this
With respect to the complaint grounded on the fact that two decrees were rendered in the case, it is only necessary to remark that if the two adjudications had correctly determined the rights of the litigants, we are unable to see any good reason why either of them should be set aside. Both must, however, be reversed, and for the same reason. Park made no attempt to prove that he had not instituted a legal action for the collection of the debt secured by his mortgage. The cause is remanded to the district court with direction to try the issues raised by the denial of the eighth paragraph of the petition and the fifth paragraph of the answer of Barton Park, and to render an appropriate decree.
Reversed and remanded.