122 Neb. 517 | Neb. | 1932
Action brought by appellee Shamburg to foreclose a mortgage on certain real estate in Cheyenne county, Nebraska, which plaintiff alleged to be a first mortgage. Plaintiff joined appellant Lundborg as a party defendant, alleging that appellant’s mortgage had been paid, and was barred by the statute of limitations. Appellant Lundborg filed a cross-petition setting up his mortgage as a first lien and asking foreclosure thereof. Lundborg admitted that his mortgage was executed and delivered October 30, 1916, due three years after date, and that no payments had been made thereon, but alleged that in a deed from one Sandahl to Andrew Mathiesen, dated May 27, 1922, the grantee assumed and agreed to pay said mortgage, and the statute of limitations only began to run from said date. Plaintiff and the owners of the equity of redemption in this property joined in asserting that appellant’s mortgage was of no validity, and was barred by the statute of limitations, and prayed the court to reform the deed of Mathiesen by striking out the assumption clause, which they claimed was inadverténtly and by mistake of the scrivener placed therein. The trial court found for the appellee, granted the reformation prayed for, and held that his mortgage constituted a first lien and ordered a foreclosure thereof, and dismissed appellant’s cross-petition. The appellant has appealed.
The evidence discloses that on October 30, 1916, D. R. Jones and wife mortgaged the land involved herein which they had récently purchased to the defendant and appellant, Oscar Lundborg, which mortgage was duly filed for -record. This mortgage to Lundborg was for $4,000 and was made payable on October 30, 1919, three years after the date of its execution. On the date the mortgage was made, Jones sold the property to Joseph M. Swenson, the.deed having a clause whereby the grantee assumed and agreed to pay the Lundborg mortgage. On February 23, 1917, Swenson
One Charles S. Beebe was the scrivener who drew up the deed between Sandahl and Mathiesen. He was a former
Mr. Sandahl testified that he was present when the deed was drawn by Beebe; that he did not know the clause, “subject to two mortgages of $4,000 each and one mortgage of $1,600, which grantee assumes,” was in the deed; that the land was deeded to Mathiesen as security for two notes
Appellant contends that the evidence is insufficient to justify the court in granting reformation. We do not deem it essential that reformation be had by the court. In the case of Crane v. Leclere, 206 Ia. 1270, it is held that the real assumption contract between the grantor and grantee may be shown by oral evidence, and as between the assuming grantee and the mortgagee, reformation of contract is not essential to the defense, where oral evidence contradicts the writing. In the case of Peters Trust Co. v. Miskimins, 115 Neb. 88, the court held: “The grantee in a deed containing a clause that the grantee assumes and agrees to pay certain mortgages on the land is ordinarily not estopped from denying such recital, and may show by parol evidence that, in fact, he never, made such an. agreement.”
The evidence in this case shows that the assumption clause in the deed was placed there by the mistaké of the scrivener and without the knowledge or consent' of the parties to said deed; that it was no part of the consideration for said deed and is not binding upon the parties thereto. The court properly struck the same from the deed and held that the mortgage of the appellant Lundborg was barred by the statute of limitations.
. The decree of the district court is therefore
Affirmed. -