43 Neb. 687 | Neb. | 1895
Originally there were commenced two actions in the district court of Lancaster county for the foreclosure of as many mortgages made by appellants. These actions were oonsolidated for the reason that a decree in each case was sought against the same property as in the other. The first mortgage in priority was one given to the Ballou State Banking Company to secure a note for $1,000. This note had been transferred to Justin Ripley by whom foreclosure proceedings were begun. The original payee having been, made a party at first disclaimed any interest in the matter litigated, but subsequently answering sought a foreclosure in respect to certain coupons evidencing interest which had accrued on said $1,000 note, which coupons had been paid by said Ballou State Banking Company because payment thereof had been guarantied by such company. The right of foreclosure on behalf of Justin Ripley, before maturity, was asserted because of a failure to pay interest, a default which entitled the holder of the $1,000 note to treat the •same as due and accordingly, to ask. a foreclosure of-the mortgage securing the same. The answer of Mr. and Mrs. Larsen was a general denial, with a special denial of the right of Ripley to foreclose on the grounds, alleged. The proofs fully sustained the right to a foreclosure as prayed, and the decree in favor of Ripley and the Ballou State Banking Company will not therefore.be disturbed. The other foreclosure was sought by Arthur L. Shader, who held a mortgage prior to that above described. The note
By their answer Mr. and Mrs. Larsen set out various advancements of money which had been made by Meyer to Charles P. Larsen, amounting in the aggregate to the sum of $525; that afterward there had been made an advancement of $90, for which Meyer had taken C. P. Larsen’s note in the sum of $100, with ten per cent interest per annum; that on or about October 20, 1889, Mr. Larson executed his note to Meyer for the sum of $725, whereas in fact said Larsen had received in all but the aggregate sum of $622.82, and that the sum of $102.18, the difference between $622.82 and $725, was put into the $725 note as interest and usury.- In addition to the above defense of usury, Mr. aud Mrs. Larsen pleaded payments of $40 in cash, and in labor to the amount of $203.59, wherefore, as they alleged, there was due but the sum of $379.23 on the aforesaid promissory note given for $725. There was in the answer averments that Shader was a purchaser of the above note after its maturity. The prayer of the answer was that credit should be allowed to the amounts of $102.18 and $243.59, and that judgment be rendered for the amount found due against said answering defendants and that said defendants recover costs. There was a decree for the full amount of the $725 note and interest. The district court found that Shader, by assignment after maturity, acquired the note and mortgage. It is, however, unnecessary to consider whether or not this result was correct in the view which we take of other matters. It is observable that the evidence as to transactions preceding the taking of the $725 note is of no importance under the averments and prayer of the answer, except such testimony as tended to establish
Affirmed.