73 Neb. 600 | Neb. | 1905
This case comes here without a bill of exceptions and upon the pleadings and decree alone. There is no dispute with reference to interpretation or about the facts. The plaintiff was the owner of mortgage liens upon a tract of land in the city of Omaha. The city by legal proceedings, in the exercise of the power of eminent domain, appropriated a strip out of the tract for highway purposes, without making the plaintiff or his assignor, the mortgagee, a party. Damages in the sum of $1,000 were awarded and paid to the mortgagor. The plaintiff foreclosed his mortgages upon the residue of the tract, and the proceeds of a sale under the decree were deficient of the sum requisite to satisfy the mortgage debt by something like $2,000. After confirmation and deed, the plaintiff begun this action against both the mortgagor and the city, reciting the foregoing facts at length in his petition and praying, in the alternative, that he have a judgment against the city for $1,000, the amount of the award, or a decree of foreclosure and sale for the amount of his deficiency against the strip of land. The court awarded him the latter relief, and he brings the cause here by a petition in error, alleging that the court erred “in rendering a decree of foreclosure against the real estate instead of rendering a money judgment.”
We are of opinion that the trial court did not err. The plaintiff was not a party to the condemnation proceedings and the lien of his mortgage was not affected thereby. There is authority for holding that if he had intervened in that proceeding, or had sought by any appropriate means to impound the fund before its payment to the mortgagor, he might have succeeded in so doing, but although it may be true that he had an equitable lien on
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
Affirmed.