51 Neb. 510 | Neb. | 1897
Tin's is an appeal by Henry M. Porter from a decree of tbe district court of Colfax county dismissing bis suit brought to foreclose a real estate mortgage.
In view of these established facts, what are the rights, liabilities, and equities of Porter, the trust company, and Stibal? Stibal, having purchased and paid for this real estate a valuable consideration after the entry of the satisfaction of the mortgage by' Toncray, the original mortgagee, without notice, actual or constructive, that the Toncray mortgage had been assigned and remained unpaid, and that the release thereof was unauthorized, he is entitled to protection as against the Toncray mortgage now sought to be foreclosed by' Porter. (Whipple v. Fowler, 41 Neb., 675.) The principle upon which that case rests is that where one of two innocent parties must suffer a loss, he whose negligence caused the injury should bear it. Although Porter is an innocent holder of the debt and mortgage, yet he might have protected himself by talcing a formal assignment in writing from Toncray of the mortgage purchased by him and caused it to be recorded in the office of the register of deeds of Colfax county. (Eggert v. Beyer, 43 Neb., 711.) And if his neglect to do this has caused the loss which either he or Stibal must bear, then, as between those two parties, the loss should fall on Porter. Stibal’s title, then, to the real estate in controversy, so far as this record discloses, is subject only to the lien of the mortgage of the trust company. The trust company is not an innocent'mortgagee of the real estate in question. At the time it took its mortgage the Toncray mortgage stood of record and the debt which it secured had two years to run. By the agreement with Ourada the trust company was to pay off the Toncray mortgage out of the loan it had made to Ourada. It paid this mortgage to Toncray, but Toncray had no authority to receive such payment. He did not
The decree appealed from is reversed and the cause remanded to the district court with instructions (1) to take an account of the amount due Porter on the Toncray mortgage; (2) the amount due the trust company on its mortgage, and to enter a decree giving Porter a first lien upon the premises for the amount due upon his mortgage, and to give the trust company a second lien for the amount found due on its mortgage, after deducting from such amount the amount found due Porter, the costs in this entire proceeding to be taxed to the trust company and Porter in such proportion as the district court may deem just.
Reversed and remanded.