5 Neb. 85 | Neb. | 1876
Is a mortgage a specialty within the meaning of our statute of limitations?
A specialty is defined to be, “a writing sealed and delivered which is given as a security for the payment of a debt in which such debt is particularly specified.” Bacon’s Abr., Obligation, A. And, although in the body of the writing it is said that the parties have set their hands and seals, yet if the instrument be really sealed it is a specialty; and if it be not sealed it is not a specialty, although the parties in the body of the writing make mention of a seal. Taylor v. Glaser, 2 Sergt. & Rawle, 504. 2 Bouvier’s Law Dic., 537. 2 Coke, 5, a. In Stockwell v. Coleman, 10 Ohio State, 40, it is held,
No case has been referred to by the plaintiff in error holding that a note secured by a mortgage is a specialty, and I think no such case can be found. In Jackson v. Sackett, 7 Wend., 94, and Clark v. Figes, 2 Starkie, 234, it was held, that although a promissory note was secured by mortgage, it remained a simple contract.
But it is urged that Holly’s usual place of residence continued to be at Nebraska City. The evidence clearly shows that he was a non-resident of this state from the year 1861 until the commencement of this action in September, 1869; he was twice elected a member of the territorial legislature of Colorado, and in the years 1865 and 1866 held the office of judge of the district and supreme court of that territory. The fact that his wife remained in Nebraska City did not, under the circumstances in this case, make that place his usual place of residence. In Blodgett v. Utley, 4 Neb., 29, this court held that “ it was the intention of the legislature to give the creditor five full years in which to commence his action, and if during that period the right to proceed in our courts to reduce the claim to judgment is suspended by reason of the absence or concealment of the debtor, the period of such absence shall not be computed as any part of the time within which an action may be brought.” It is also held that the words usual place of residence mean the place of abode at the time of service of a summons. Section 17 of the code of civil procedure, Revised Statutes of 1866, which took effect September 1, 1866,
A more serious objection, however, arises on the sufficiency of the evidence to sustain the judgment of the court below. The rule is well settled that the findings of a court when substituted for a jury are entitled to the same weight as the verdict of the latter; and a verdict will not be set aside on the ground of an erroneous finding, unless it is clear that such is the case. Merrick v. Boury, 4 Ohio State, 60. And a mere difference of opinion between the court and jury will not warrant the former in setting aside the finding of the latter. McGatrick v. Wason, 4 Ohio State, 566. The correct rule appears to be that if the verdict or finding is clearly wrong, it should be set aside; but if we only doubt its correctness it will not be disturbed.
In this case it appears that in addition to the mortgage on the real estate in controversy, Holly executed a chattel mortgage on the mill and machinery as additional security on the note in question. It also appears that in April, 1862, an action was commenced by the plaintiff in the court below in the district court of Boulder county, Colorado, to foreclose the chattel mortgage, and that under the proceedings in the case Street obtained possession of the mortgaged property, which is shown to have been of the value of $9,500.00. The plaintiff in the court below contends that this suit was compromised on the
’ It being conceded that the plaintiff in the court below obtained possession of the property under the mortgage, it devolves on him- to show by a preponderance of testimony that the property in question was returned to Holly and the mortgage released. But the proof entirely fails, in my'opinion, to establish the fact that the mortgage was released and the mortgaged property returned to Holly. It is somewhat remarkable that if the sum of $1,250.00 was actually paid, it was not indorsed on the note, or at least a receipt given for it; but nothing of the kind is claimed. The evidence as to the loss of the note is not sufficient, in a case of this kind, to permit evidence of its contents to be given on the trial. For these reasons the judgment of the district court must be reversed.
But, while the statute of limitations of this state has not run against the claim, it is a very suspicious circumstance, that no action was brought to foreclose the mortgage, which is the foundation of this suit, for more than eight years after the note became due. This is not the
In the year 1867, Alexander Majors filed his petition in the United States district court for the state of Nebraska, praying that he might be adjudged a bankrupt within the provisions of the act of March 2, 1867. In the schedule of assets, no mention is made of any indebtedness from Holly to Majors. On the twenty-fifth day of May, 1868, he received a certificate of final discharge from all debts provable under the act, which existed on the thirteenth day of September, 1867. Section 19, of the act of March 2, 1867, requires the petitioner to annex a schedule, verified by oath, to his petition, which shall contain: “a full and true statement of all his debts, and, as far as possible, to whom due, with the place of residence of each creditor, if known to the debtor, and if not known, the fact to be so stated, and the sum due each creditor; also the nature of each debt or demand, whether founded on written security, obligation or otherwise, and also, the true cause and con
The trustee of an express trust may bring an action in his own' name, without joining the name of the assignor; but the trust in this case was to apply the property of Majors to the payment of his debts. On payment of the debts the trust should cease and determine; and the property remaining in the hands of the trustee should be re-assigned to Majors. A discharge under the bankrupt law operates in discharging the bankrupt from all debts provable against his estate, which existed at the time of filing the petition. The discharge, therefore, has the same effect as payment of the debts; and the trusteeship of Street ceased at that time. The law requires actions to be prosecuted in the name of the real party in interest. It is clear, that whatever property, or choses in action, remained in the hands of Street at the time of the discharge belonged to Majors. If he has made a fraudulent concealment of his property, it may afford grounds to impeach and set aside the discharge; but it cannot be assailed in a collateral proceeding. It is apparent, therefore, that the action should be brought in the name of Majors, unless it should be made to appear, that these debts survived the discharge, and are to be paid out of the property conveyed to Street in trust, of which there is no proof.
Objection is made by the defendant in error, that thé plaintiff in error, having taken a stay of- execution, has
It is unnecessary to review the case farther. The judgment of the district court is reversed, and the cause remanded for further proceedings.
Reversed and remanded.