40 Neb. 152 | Neb. | 1894
The appeal in this case is from the confirmation of a sale and a decree of foreclosure in the district court of Lancaster county. To an understanding of our conclusion it is necessary to give a history of the proceedings antedating and forming the basis of the order of confirmation of which complaint is now made.
On the 25th day of April, 1893, William Schultz, Jr., and the Clark & Leonard Investment Company (a Nebraska corporation), as plaintiffs, filed in the aforesaid district court their joint petition, in which Altie E. Loomis and Carlton E. Loomis, her husband, were made defendants. This petition was for the foreclosure of a mortgage executed by the defendants to the Clark & Leonard Investment Company October 14, 1891. This mortgage was to secure payment of a bond contemporaneously made, whereby Altie E. Loomis and Carlton E. Loomis promised to pay to the aforesaid investment company the principal sum of $7,000 October 1, 1896, and interest thereon at six per cent per annum, as evidenced by nine coupons, each for $210,
“ 6. The defendants have not paid, or caused to be paid, the debt secured by said mortgage, or any part thereof, as provided thereby as due on the annexed note and coupons, but are in default' in this, to-wit, that they have not paid, or caused to be paid, the interest coupons due on October 1, 1892, and thereafter, nor the taxes levied on said lands for the years 1890 and thereafter, but the same have become delinquent, and said land has been sold by the county treasurer of said county for the payment thereof, according to the statute in such case made and provided; wherefore plaintiffs have elected, and hereby elect, to consider the whole sum so secured due and payable, and said mortgage deed has thereby become absolute.
“ 7. That heretofore, to-wit, on October 1,1892, and April 1, 1893, the defendants were in default of the interest coupons then maturing, and the plaintiff the Clark & Leonard Investment Company did pay the amount thereof to the plaintiff William Schultz, Jr., pursuant to its contract of guaranty aforesaid, and said coupons were thereupon reassigned and delivered to the plaintiff the Clark & Leonard Investment Company, and the same is now the lawful owner and holder thereof.”
In this connection it is proper to say that the mortgage first referred to in the petition provided that the failure to pay any of the money therein promised to be paid, either principal or interest, within thirty days after the same became due, or to perform any other condition (one of which was timely payment of taxes), should cause the whole sum secured to become due and collectible at once without notice, if the mortgagee, its successors or assigns, should so elect, and that the said mortgage might thereupon be foreclosed immediately for the whole of said money, interest and costs.
On the 17th day of June, 1893, there was filed an amended petition, differing from the original, so far as concerns this inquiry, only in omitting the election to declare
1. While the summons was omitted from the record so-that we cannot determine just when the defendants were in default, it appears from the journal entries that on the very day when this amended petition was filed the default of the defendants was adjudged by the court, and a decree thereon rendered against them. It cannot be assumed that the court entered a decree upon the amended petition under the circumstances stated inconsistently with the decisions of this court in Hapgood v. Ellis, 11 Neb., 131; Cockle Separator Mfg. Co. v. Clark, 23 Neb., 702; Taylor v. Trumbull, 32 Neb., 508, and Arnold v. Badger Lumber Co., 36 Neb., 841.
2. If the foreclosure had been for only an installment or a matured portion of the debt secured by the mortgage, the decree should have followed the requirements made in such cases by the provisions of sections 858-861 of the Code of Civil Procedure.
3. It is very questionable, after declaring the whole amount secured by the mortgage to be due and collectible, whether in the same suit the plaintiff could, without stipulated authority, revoke such election; in this case there was, however, no attempt at such revocation.
We are therefore constrained to hold that the amended petition in no respect modified or superseded the original petition, and that both the plaintiffs having once declared upon, elected to treat as wholly due, and obtained a decree of foreclosure upon, the mortgage securing payment of the bond for $7,000 and interest, their remedy was wholly exhausted as to said mortgage. The decree was for the sum of $1,463.80 established as a lien upon the property mortgaged. To satisfy this decree an order of sale issued and
This cause is reversed and is remanded to the district court of Lancaster county, with directions to enter a decree conformably to the prayer of the original petition of plaintiffs.
Reversed.