Pochin v. Conley

74 Neb. 429 | Neb. | 1905

Duffie, C.

Neis Anderson, one of the defendants, purchased 160 acres of land in Custer county from one Mary G?. Thorn-burg in June, 1892, for $1,600. At that time there was an $800 mortgage on the land in favor of the Globe Investment Company, which mortgage was deducted from the purchase price. Anderson paid Mrs. Thornburg $500 in cash and gave a second mortgage on the land for $300 to secure the balance of the purchase money. The $800 mortgage given to the Globe Investment Company was transferred to William Pochin, who commenced foreclosure proceedings thereon and obtained a decree on December 3, 1896. The $300 mortgage given to Mrs. Thornburg was by her transferred to the appellent, Mrs. Jakway, who was made a party defendant in the foreclosure action commenced by Pochin. The decree found that there was due on the mortgage held by Pochin $946.-66, and on the mortgage held by Mrs. Jakway, $391.50. An order of sale issued on this decree and the land was sold in June, 1898, and the premises bought in by William Pochin, plaintiff in the action, for $600. The proceeds of the sale being insufficient to satisfy the decree in favor of Pochin, of course there was nothing to apply on the second lien of Mrs. Jakway. This sale was confirmed by an order of the district court entered on June 21, 1898, and the sheriff ordered to make a deed to the plaintiff, Pochin. The sheriff’s deed was made October 29, 1898. On July 24, 1903, Mrs. Jakway filed in the district court for Custer county Avhat is termed an “application for judgment and supplemental answer”; this paper being entitled the same as the foreclosure proceedings commenced by Pochin. In this application and supplemental answer Mrs. Jakway alleges all of the matters above set out, and states further that, the Pochin mortgage having been deducted from the purchase price of the land at the time Neis Anderson bought from Mrs. Thornburg, he was in duty bound to pay the same; that he and his wife, Clara Anderson, for the purpose of defeating the mortgage held by Mrs. Jalnvay and depriving her of her security, permitted Pochin to foreclose his mortgage, and after the decree and sale, but before, the making of the sheriff’s deed, Mrs. Anderson took from him a quitclaim deed, which, it is alleged, amounts to nothing more than a redemption from the sale. The prayer is that personal judgment may be entered against both Neis and Clara Anderson for the amount found due her by the decree in the Pochin foreclosure, and that the judgment be made a special lien upon the mortgaged premises. Both Neis and Clara Anderson filed answers, and by a lengthy reply filed by Mrs, Jakway the facts are set out more in detail; the theory being that, Mrs. Anderson having joined with her husband in the mortgage given to Mrs. Thornburg, she is now estopped by the covenants therein from setting up title to the land as against that mortgage. It is further claimed that the money paid Pochin for the quitclaim deed was principally furnished by Neis Anderson, and that he is the equitable owner of the land. A decree went in favor of the Andersons, and Mrs. Jakway has brought the case here by appeal.

Among other defenses interposed by the Andersons was the statute of limitations, but the decree entered does not shoAV what view was taken by the district court' of that defense. Whether Mrs. Jakway in her ansAver in the Pochin foreclosure action asked for a deficiency judgment against Neis Anderson, who alone signed the note secured by Mrs. Jakway’s mortgage, does not appear, but the presumption is that no such relief Avas asked, the foreclosure decree not making any reference to such a claim made either by Pochin or by Mrs. Jakway. We have, then, this case: A decree of foreclosure entered in December, 1896; a sale under that decree which was confirmed in June, 1898; a deed from the purchaser to Mrs. Anderson after the confirmation, but before the execution of the sheriff’s deed. The confirmation of the sale devested Neis Anderson of his title to the property, and, while the sheriff’s deed was not executed until October, 1898, he still became the equitable owner of the land upon the confirmation of the sale. Lamb v. Sherman, 19 Neb. 681; Yeazel v. White, 40 Neb. 432. The sale and the confirmation satisfied the Pochin decree to the extent of $600, the amount bid upon the land, and we do not see how it can be claimed that redemption from the decree could thereafter be made. After the sale to Pochin was completed by confirmation, he could sell his interest in the land, and Mrs. Anderson had the same right as any other to make the purchase. If the money was furnished by her husband, that fact might be established in a proper action and the land subjected to the satisfaction of any judgment against him; but it does not appear that Mrs. Jakway is a judgment creditor. Upon confirmation of the sale she was entitled to a deficiency judgment against Neis Anderson, who alone signed the note secured by her mortgage; but no judgment bas yet been established against him for a deficiency, and, if we treat the pleading in this case as an application for such judgment, the defense of the statute of limitations was interposed and ought to be sustained.

In Durkee v. Kochler, 73 Neb. 833, it was held that an application for a deficiency judgment should be made within the time that the statute Avould bar an action on the note or account on which the lien is based, counting from the date of confirmation of the sale of the property. More than five years from confirmation having elapsed before the filing of this supplemental answer, the right to a deficiency judgment is barred by the statute, and the court properly dismissed the application. Mrs. Anderson is not estopped by the covenants in the mortgage held by Mrs. Jakway. She did not hold title to the mortgaged premises at the time it was given, but joined with her husband only for the purpose of releasing her dower. By section 48, chapter 73, Compiled Statutes 1903 (Ann. St. 10251), it is provided that “a married Avoman shall not be bound by any covenant in a joint deed of herself and husband,” and, while it has been held that this statute was abrogated by the married woman’s act, so far as it attempted to release her from covenants made in a conveyance of property held in her OAvn right and in which her husband joins, the statute is still effective to protect her her against covenants contained in a deed in which she joins with her husband in a conveyance of property owned by him for the sole purpose of releasing her doAver interest.

The decree of the district court was correct, and we recommend its affirmance.

Jackson, C., concurs. Albert, C., not sitting.

By the Court: For the reasons stated in the foregoing opinion,'the decree of the district court is

Affirmed.