58 Neb. 402 | Neb. | 1899
It appears herein that on or about May 25,1887, George E. Barker, Frank B. Johnson, and Robert Garlichs borrowed from Reuben Ross, a resident of New York state, the sum of $100,000, and to evidence the indebtedness created by the transaction executed and delivered to him their promissory note. As security for the payment of the amount of the loan certain promissory notes and the real estate mortgages, by which their payments were secured, were transferred by the parties borrowers to the loaner and payee of the principal note. There were about 300 of the notes which were indorsed and delivered as collateral securities, and the amount of them, in the aggregate, was something more than $100,000. The mortgages were duly assigned. Subsequent to the completion of the transaction of loan Reuben Ross died, and the further matters of business relative to the affair were under the management and direction of the executors of his estate. After the loan was effected the interests of Robert Garlichs and Frank B. Johnson in the collateral securities were by assignment passed to the National Bank of Com: merce. There had been foreclosures of many of the mortgages, and at the sales of the mortgaged premises Reuben Ross, or the executors, had become the purchasers. They had also compromised with some of the debtors of the collateral securities, by acceptance of renewals in some instances and by reception of conveyances of titles of the mortgaged properties in others. The executors sought in this action to recover an amount of the original loan indebtedness, which they asserted was due and unpaid. The defendants pleaded that more than sufficient to pay the entire principal debt and interest had been realized from payments, foreclosures, etc., of the collateral'securities. The National Bank of Commerce intervened in the action and set forth its claimed rights, as assignee of the interests of certain of the parties to the loan, in the collateral securities. In the reply of the plaintiffs there
On January 2, 1896, there was filed a decree, of which the following is the opening statement: “This cause heretofore coming on to be heard in its regular order upon the petition of the plaintiff, the answer of the defendant George E. Barker, the reply of the plaintiffs to the answer of George E. Barker, the petition of intervention of the National Bank of Commerce, the answer of said plaintiffs to said petition of intervention of the National Bank of Commerce, the reply of the National Bank of Commerce to said answer, and the evidence and argument of counsel, and a jury being waived in open court by all the parties hereto, was submitted to the court, on consideration whereof, and the court being duly advised in the premises, on this 2d day of January, 1896, finds.” This entry discloses that the-submission of the cause had been at a time prior to the decision. On the same day, January 2, 1896, there was filed for plaintiffs a request that the court state in writing and separately its conclusions of facts and law. This request was refused. There was a judgment for defendants, and the plaintiffs have removed the cause to' this court..
It is argued that the trial court erred in its refusal of the request for separate statements of its conchisions of facts and of law, and in this connection we are referred to section 297 of the Code of Civil Procedure as providing for such a request, and it is urged that if it is made, there must be a compliance with it, and its refusal may furnish
The further question presented at this time is not one of practice, but of the merits. It is of the relative rights of the parties, where one who holds as collateral security a note secured by mortgage on real estate, on default in payment of the principal debt, forecloses by action the mortgage of the collateral security, to which action he does not make the principal debtor a party, and said holder of the collateral security at the foreclosure sale purchases the mortgaged property. Does he hold the title and property as collateral security, as he *did the mortgage? Can his debtor redeem it by payment of the principal debt and can he also, if he so elects, allow the purchase to stand and ask and force a credit on his debt of the amount of the bid at the foreclosure sale by his creditor? As is stated in the brief for defendants in error, it appeared, or there was evidence to sustain the findings, that plaintiffs and Reuben Ross “(a) had extended the time of payment of certain collateral notes; (6) had canceled and surrendered to the makers certain other collateral notes, accepting in satisfaction thereof
In regard to the actions to which the assignor of the collateral securities was not a party, in which there were foreclosures and sales and purchases of the property by the holders of the securities, we ascertain that the following doctrine has been asserted: “The holder of a negotiable promissory note, secured by mortgage, as collateral security for a debt, is entitled, upon default, to proceed with the foreclosure of the property included in the mortgage security, and. to entry, and possession thereof, under appropriate proceedings. Such proceedings, however, do not change the relations of the parties to the contract of pledge, the land being simply substituted as collateral security in place of the notes and mortgage, and remaining subject to redemption. Nor, as between the pledgor and pledgee, is such foreclosure, entry, and possession a payment of the debt for which the notes and mortgage are held as collateral security.” (Oolebrooke, Collateral Securities, p. 330, sec. 183.) The foregoing statement made by the author of the text was evidently derived
Affirmed.