13 N.W.2d 892 | Neb. | 1944
Plaintiff filed this suit in equity to redeem from a mortgage foreclosure decree alleged to be void because the decree was rendered on defendant’s cross-petition filed more than four months after answer day, 'without any issue of process or appearance of plaintiff, and the attorneys who took the decree for defendant against plaintiff and his wife, without their knowledge or consent, were admittedly their own attorneys, first employed by them to defend and protect their interests in the cause. - Many pleadings were filed by defendant attacking plaintiff’s petitions until the cause was finally at issue on plaintiff’s third amended petition, defendant’s answer, and plaintiff’s reply. After hearing upon the merits the trial court at the March, 1943, term entered a decree finding and adjudging generally for plaintiff, except as to certain disputed items of accounting. Motions for new trial were filed by both parties, and thereafter the court on its own motion, during the same term, set aside its former decree and entered another more favorable to defendant. Motions for new trial were again filed and upon the overruling thereof defendant appealed and plaintiff cross-appealed to this court. Except as hereinafter modified in conformity with plaintiff’s cross-appeal, we affirm the judgment of the trial court.
Defendant’s chief contentions here are that the trial court erred in the following particulars: 1. Overruling- paragraphs 1 and 2 of a motion filed by defendant December 19, 1942; 2. Permitting plaintiff to redeem without pleading and proving tender before suit; 3. Holding that the action was not barred by the statute of limitations.; 4. Refusing to find that plaintiff was estopped to deny validity of the decree or to redeem; 5. Permitting plaintiff to recover rents and profits; 6. Awarding plaintiff the sum of $50 as costs and expenses for a handwriting expert necessary to prove the genuineness of certain documents, as provided by section 20-1266, Comp. St. 1929; and 7. In entering its last decree as the sequel of am alleged nunc pro tunc order.
By cross-appeal plaintiff contends that the trial court
The evidence and circumstances appearing in this record amply support the allegations of plaintiff’s petition, which are in substance: That plaintiff is a man of limited education, unable to read English, and with no knowledge of law. That defendant Duda is his brother-in-law, and Dwyer & Dwyer were plaintiff’s lawyers, upon whom he placed special reliance as to their superior knowledge, integrity, and duty to defend and protect him. That at all times since 1915 plaintiff and his wife were the owners of a valuable home in Plattsmouth, Nebraska, which since April 28, 1936, defendant has held in trust for plaintiff subject only to reimbursement to defendant of the balance unpaid upon a second mortgage for $812.50 at 5 per cent executed by plaintiff and wife on May 15, 1923, to secure a loan made by defendant. That plaintiff paid defendant on the principal thereof $50 on July 11, 1929, and $500 on May 12, 1930, which together with other admitted payments of principal and interest left a balance of $225.50 remaining unpaid on April 10, 1923, with interest at 5 per cent from that date, no part of which was due or delinquent until after April 10, 1934. That in 1920 plaintiff and wife executed a first mortgage on their home to the Plattsmouth Loan & Building Association, hereinafter called the Association, and on December 24, 1932, applied to it for an additional loan sufficient to pay defendant in full, which was granted upon condition that defendant release his second mortgage. That defendant was requested to execute such a release, whereupon he consulted Dwyer & Dwyer, plaintiff’s attorneys, who requested plaintiff to come to their office where the attorneys, in defendant’s presence, informed and instructed plaintiff that he should make no further payments to the association because he had already overpaid them, which they would prove by requiring the Association to bring their books into
Plaintiff’s second and third alleged causes of action by reference incorporated severally all the allegations of the first cause of action, amplified by alleged promises and representations by defendant and his attorneys that the defendant did not want the property, and that they would represent and protect plaintiff and deed the property back to him upon payment of the balance of the second mortgage, having at all times, however, the secret intention of never keeping the promises. Plaintiff prays for an accounting, the right to redeem, cancellation of the sheriff’s deed, return of possession of the property to him, or in the alternative judgment for damages, and for such other and further relief as may be just and equitable.
Defendant’s first contention that the trial court erred in overruling a part of his motion is without merit. It has long been the rule in this state that, “ ‘A motion may properly be overruled which cannot be allowed in substantially the same terms as requested.’ ” Wiedeman v. Estate of Peterson, 129 Neb. 74, 261 N. W. 150. The first paragraph of defendant’s motion is that plaintiff be required to separately
Under our Code system, although proper and learned so to do, it is not necessary to state a cause of action in any particular form. The facts are to be stated in ordinary concise language without repetition, but all that the law requires is that there shall be a cause of action. A party has a right to plead the whole transaction by which he claims he was defrauded and the trial court has no right to strike out a part of his cause of action. See Hovland v. Burrows, 38 Neb. 119, 56 N. W. 800; In re Estate of Wise, ante, p. 273, 13 N. W. 2d 146.
In connection with defendant’s second contention, we decide that plaintiff’s petition stated a cause of action, and it was not necessary for plaintiff to plead and prove tender before suit. “The right of redemption after a sale on foreclosure as accorded by the statute in some states is distinct from the equity of redemption before the foreclosure sale. The former commences only when the latter ends. A valid
Bearing these rules in mind, we find the law relating to tender in cases like the one at bar to be, that, “Where an action is brought in equity to redeem, the offer in the complaint (petition) to pay the amount found due to the creditor (mortgagee) is sufficient to support the action without a previous actual tender of the amount due.” 3 Wiltsie, Mortgage Foreclosure (5th ed.) 1832, sec. 1215. And, “Where the person from whom redemption is sought has been in possession of the land and an accounting is necessary by virtue of his receipt of rents and profits, a tender by the plaintiff before bringing the action to redeem is unnecessary.” 3 Wiltsie, Mortgage Foreclosure (5th ed.) 1834, sec. 1216. See, also, 2 Jones, Mortgages (8th ed.) 887, sec. 1400; 42 C. J. 404; Clark v. Hannafeldt, 79 Neb. 566, 113 N. W. 185.
The trial court did not err in holding that the plaintiff’s cause of action was not barred by the statute of limitations. In Dorsey v. Conrad, 49 Neb. 443, 68 N. W. 645, directly in point here, this court said: “An action by an owner of the fee to redeem his land from a mortgage thereof which has been foreclosed, and to which foreclosure proceeding he was
In conformity with the rule that, “An estoppel will not be predicated on a portion of the record and of the facts, but on the whole thereof” (31 C. J. S. 193, sec. 5), and bearing in mind that, “The right to redeem is a favorite of equity, and will not be allowed to be taken away, except upon a strict compliance with the steps necessary to divest it, and by due process of law” (3 Wiltsie, Mortgage Foreclosure (5th ed.) 1673, sec. 1071), we have searched the whole record and thus given consideration to defendant’s contentions that plaintiff is estopped to deny the validity of the decree of foreclosure and to redeem. There are cases where persons seeking to redeem have been estopped by their own acts and conduct from exercising the right as against persons in good faith entitled to rely thereon, but these authorities have no similarity or application to the case at bar.
In Rear. Pierson, 114 Neb. 173, 206 N. W. 760, this court gave approval to the language in 21 C. J. 1207, sec. 208, to wit: “In order to create an estoppel by the acceptance of benefits, it is essential that the party against whom the estoppel is claimed should have acted with knowledge of his rights; also that the party claiming the estoppel was without knowledge or means of knoioledge of the facts on which he bases his claim of estoppel, that he toas influenced by and relied on the conduct of the person sought to be es-topped, and that he changed his position in reliance thereon to his injury.” (Italics supplied.)
The purpose of estoppel is to' prevent inconsistency and fraud resulting in injustice. See 31 C. J. S. 192, sec. 1.
“A party may not properly base a claim of estoppel in his favor on his own wrongful act or dereliction of duty, on
“The doctrine of estoppel is for the protection of innocent persons, and only the innocent may invoke it.” 31 C. J. S. 281, sec. 75. This court has held that a void judgment is a mere nullity which neither affects, impairs, or creates rights, and that as to the person against whom it professes to be rendered it binds him in no degree whatever. It has no effect as a lien upon his property and it does not raise an estoppel against him. See Minnesota Thresher Mfg. Co. v. L’Heureux, 82 Neb. 692, 118 N. W. 565.
There is another more important reason, however, which bars the defendant from claiming the benefit of estoppel and retaining the benefits of the foreclosure litigation. The record discloses that the attorneys representing defendant had been plaintiff’s attorneys in small matters for many years, and it is admitted that they were employed as attorneys to represent plaintiff and his wife in the particular litigation before the defendant employed them. The interests of plaintiff and defendant were unquestionably adverse, which makes applicable the rule announced by this court in Zimmer v. Gudmundsen, 142 Neb. 260, 5 N. W. 2d 707: “ ‘An attorney owes to his client an undivided allegiance, and after he has been retained by, and received the confidence of, a client, he cannot, without the free and intelligent con'sent of his client, given after full knowledge of all the facts and circumstances, act both for his client and for one whose interest is adverse to or conflicting with that of his client in the same general matter, however slight such adverse interest may be; nor is it material that the intention and motive of the attorney may have been honest.’ 5 Am. Jur. 296, sec. 64.” And, these rules are of utmost importance not, only to lawyers but to litigants, since we here reaffirm that a litigant in a suit in equity will not be permitted to secure the fruits of a decree in his favor, obtained for him by an attorney whom he knows also represents his adversary in the subject matter before the court, without in
We turn now to the question of rents and profits, and hold that plaintiff was rightfully entitled to recover them. The g-eneral rule is that, “Where a sale to the holder of the mortgage is voidable, he is accountable for rents and profits. And where possession is not only wrongfully taken by the mortgagee, but accompanied by force and fraud, the mortgagee, on a suit to redeem, cannot be charged with less than the whole rental value during his possession.” 3 Wiltsie, Mortgage Foreclosure (5th ed.) 1860, sec. 1287. The trial court allowed $18 a month from May 12, 1936, to May 12, 1939, and $25 a month thereafter until the date of the decree as rental value, which we will not disturb here, and which we find and decide is a proper rental value until the date of judgment on the mandate herein. Further, we sustain plaintiff’s second contention in the cross-appeal, since interest on- rents and profits is properly allowable at the contract rate. See Walter v. Calhoun, 88 Kan. 801, 129 Pac. 1176. The rule is, however, that interest should not be charged upon rents and profits from the end of the year when they accrued, but rents and profits, less taxes paid, without interest on such taxes, should be first applied at the end of each year to extinguish the interest upon the principal for that year (beginning May 12, 1937), and if a balance of rents and profits remains thereafter it should be applied pro tanto to’payment of the principal of the mortgage until extinguished, after which rents and profits, less taxes paid, shall draw interest from the end of each year at the statutory rate, until date of judgment on the mandate; and in this accounting the trial court shall not permit any interest to be charged upon interest. See 3 Wiltsie, Mortgage Foreclosure (5th ed.) 1863, sec. 1238; Kinkead v. Peet, 153 Ia. 199, 132 N. W. 1095; Dickson v. Stewart, supra.
For clarity in connection with the accounting, we here discuss and sustain plaintiff’s first contention on the cross-appeal. It was error to permit defendant to recover any
Defendant’s contention that the trial court erred in taxing $50 costs against him as expenses for plaintiff’s handwriting expert, as provided by section 20-1266, Comp. St. 1929, cannot be sustained. The amount of the expense is not in dispute. The record discloses that plaintiff made request in writing for admission of the genuineness of two receipts given by defendant to plaintiff for payments made upon the principal of defendant’s second mortgage. The written request was served upon the attorney for defendant herein and upon Dwyer & Dwyer, his former attorneys, on September 9, 1942, after this action was commenced and more tha-n two weeks after defendant and his counsel had obtained photostatic copies thereof. No admission of their genuineness was made by any of them in writing within four days or at any other time. At the time the expert was sworn as a witness counsel for defendant admitted the genuineness of defendant’s signatures upon both the documents but refused to admit the matter appearing above the signatures. We find no good reason for the refusal to. admit their genuineness as required by the statute. From the evidence and circumstances appearing in the record this court has no doubt of their genuineness, and affirmatively finds and decides that the payments of $50 on July 11, 1929,
With reference to defendant’s last contention, we find that the trial court had inherent jurisdiction and authority derived from the common law, and independent of statute, upon its own motion or otherwise, to' vacate its first decree and render another at the same term. In Lyman v. Dunn, 125 Neb. 770, 252 N. W. 197, this court said: “In civil cases, a court of general jurisdiction has inherent power to vacate or modify its own judgments at any time during the term at which they are rendered.” See, also, Bradley v. Slater, 58 Neb. 554, 78 N. W. 1069; Eager v. Blake, 1 Neb. (Unof.) 852, 96 N. W. 74; 34 C. J. 207. The fact that the trial court used the misnomer “nunc pro tunc” in its order setting aside the first decree is entirely immaterial since the latter decree was entered at the same term and not for the purpose of extending the time for appeal but only in a sincere effort to enter a proper decree, which was more favorable to defendant than the first, and could not have been prejudicial to him in any manner.
We have heretofore affirmatively disposed of plaintiff’s contentions on the cross-appeal, and we will not discuss them further.
The judgment of the trial court is affirmed in part, and in part reversed, and the cause remanded with directions to enter a judgment for plaintiff in conformity with this opinion, without adducing any further evidence except to determine the amount of taxes, if any, paid by defendant upon the property involved since the date of the trial court’s decree.
Affirmed in part and reversed in part, WITH DIRECTIONS.