49 Neb. 730 | Neb. | 1896
This action was brought by Seeley to foreclose a mortgage executed by Wiekstrom and wife. N. D. Blackwell & Co. and the Bank of Wilcox were made defendants, they claiming liens on the mortgaged premises. Blackwell & Co. answered, alleging the execution by the Wickstroms to them on the 30th of September, 1890, of a mortgage to secure a note for $1,916.80. The Bank of Wilcox answered alleging the execution of a mortgage to it by the Wickstroms November 24, 1891. The Bank of Wilcox prayed for foreclosure of its mortgage. Blackwell & Co. merely prayed that the amount of their mortgage might be ascertained, and that all other' liens be adjudged inferior thereto. On the trial the First National Bank of Holdrege was, on motion, substituted for Blackwell & Co., and Blackwell & Co.’s a,nswer amended by substituting the name of the bank and interlining an averment that the note and mortgage of Blackwell & Co. belonged to the First National Bank. No exception was taken to this order. The court, by its decree, found that the plaintiff had a first lien, and found the lien in favor of the First National Bank of Holdrege superior to that of the Bank of Wilcox, and awarded a decree of foreclosure. The decree contained numerous findings establishing judgment liens in favor of others, but the Bank of Wilcox is the only appellant, and the priority as between it and the First National Bank of Holdrege is the only question presented for consideration.
The Bank of Wilcox claims that the proof shows that the Wickstroms, after having made the mortgage to Blackwell & Co., paid and thereby discharged the same, and thereafter delivered the same note and mortgage to the First National Bank as collateral security to another debt owed by the Wickstroms to that bank. It is therefore urged that this mortgage had served its purpose, and that such a transaction did not preserve the lien of that mortgage in favor of the First National Bank. An
It is further contended that the decree cannot, in any event, be sustained, because of the absence of any evidence as to the amount due the bank for which the mortgage stood as collateral. But where a note is valid as between the parties, and has been pledged, the pledgee may recover against the maker the whole amount due, retaining any surplus for the benefit of the beneficiary entitled. (Haas v. Bank of Commerce, 41 Neb., 754; Barmby v. Wolfe, 44 Neb., 77.) The note in evidence renders the amount due only a matter of computation.
It is also contended that as the note was held as collateral security, and the debt for which it was pledged was not due, there could be no foreclosure. In the whole case the argument turns too much upon the unexplained
Reversed and remanded.