34 Neb. 265 | Neb. | 1892
This is an action to foreclose a mortgage upon real estate. The mortgage was executed by G. P. Dietz and E. M. Stickney upon the south half of the south half of section 8, town 7, range 9 west, of the sixth principal meridian, excepting, however, the west eighty acres of above contrac heretofore conveyed, and also subject to the right of way privileges granted to the Republican Yalley Railroad Company by deed dated March 18, 1886, and recorded
Everett C. Sawyer, in his answer, denies each and every allegation in the petition, and, second, pleads a counterclaim of $1,000 for services rendered by him in performance of the duties of an alleged trust.
Alice E. Sawyer disclaims any interest in the premises.
Abraham Loeb, Mark Levy, James O. Kay, W. H. Fuller, Joseph Boehmer, Alexis Halter, W. J. Brotherton, and Thomas H. Hyde filed answers denying the allegations of the petition.
Upon the issues thus found the case was tried. The court found that there is due to the plaintiff from the defendants G. P. Dietz, Edward M. Stickney, and Harrison Bostwick, the sum of $7,194, with interest at eight per cent from May 20,1889, and that there will be due on the 29th day of March, 1890, $2,907 with interest at eight per cent from May 20, 1889, or $2,875; that the defendant Sawyer takes nothing by his cross-petition, and that the other defendants Everett G. Sawyer, Alice E. Sawyer, Frank C. Fry, James C. Kay, George A. Stickney, B. H. Whitney, Joseph Boehmer, B. J. Brotherton, Thomas Hyde, Alexis Halter, Mark Levy, Abraham Loeb, and W. H. Fuller are not liable in this case.
The bill of exceptions seems to be in proper form, and there is no claim that aught has been improperly included therein. The record necessarily brings up the entire case. This principle was recognized in Taylor v. Courtnay, 15 Neb., 190.
It is unnecessary to review the testimony at length. Taking the entire testimony together it clearly establishes' the following facts :
First — That the land in question was bought as a speculation, and a value placed upon it of $20,000.
Second — That the eestuis que trust named, except Everett Sawyer, who purchased a twentieth interest therein, each took a tenth share in the property, for which he agreed to pay the sum of $2,000.
Third — That deducting the amount of the mortgage each one paid the amount of the stock, being $1,140. .
Fourth — That the title was taken in the name of Bostwick as trustee as a matter of convenience in making transfers.
Fifth — That any one of the eestuis que trust could require Bostwick to convey to him his interest in the land subject to the mortgage.
The case does not differ, therefore, in principle from that of Bear v. Koenigstein, 16 Neb., 65. That trust results from the purchase and payment of the money.
In the case at bar the proof clearly shows that the oes
Judgment accordingly.