5 Neb. 195 | Neb. | 1876
On the trial of the cause in the court below, it having been made to appear that Forest K. Biser, one of the defendants, was but sixteen years of age, the court appointed a guardian ad litem, who answered the petition of the plaintiff, denying all the facts therein stated. And, as a further answer, the'defendant says: “that, before any of the transactions mentioned in the petition or in the cross petition of the defendant Wheeler, to-wit: about the fall of the year 1871, this defendant bought the property described in the petition of Fanny J.
The general rule in equity is, that all persons materially interested in the mortgaged premises should be made parties to the suit. This includes all incumbrancers (prior and subsequent), existing at the time of filing the petition, in order that a purchaser may take a perfect title by a sale under the decree, as he takes only the title of the parties to the suit; and also to prevent a multiplicity of suits, and in order that the proceeds of the mortgaged premises may be distributed among the lien-holders according to the priority of liens. Many of the cases hold, that a prior incumbrancer is not a necessary party to the suit, as the purchaser takes the estate subject to the paramount lien; yet he is a proper party in order to obtain an adjudication as to the validity and amount of the lien.
A person claiming adversely to the title of the mortgagor, and prior to the execution of the mortgage, cannot properly be made a party, for the purpose of trying the validity of such adverse claim of title. But this rule does not exclude one who claims title, and, also, claims to hold a mortgage on the same premises, who submits his claims to the adjudication of the court, and asks, that in case the court finds his title to the premises invalid, that he may have a decree for the amount due on the mortgage. These defenses are inconsistent; and, had a motion been made at the proper time, the defendant would have been compelled to elect, on which he
The defendant, Forest K. Biser, states in his answer, that he paid $550.00 for the premises in controversy, and received a deed therefor. The testimony shows that $150.00 was all that was paid for the property, of which one hundred was paid in money, and fifty dollars in fur^ niture. There is a conflict of testimony as to whom the first deed to the property was made, Julia A. and Forest K. Biser stating that the original deed from Mrs, Ebright was made and delivered to Forest K. Biser. The testimony of E. E. Ebright, a disinterested witness, who acted as agent in the sale of the property, is, in substance, as follows: That Mr. Biser came to see him about the purchase of the property, and the contract was made with him in the presence of Mrs. Biser, that the deed was to be taken in her name; that a deed was so made for the premises in question, and delivered to Mr. Biser, who thereujDon paid him $50.00 in furniture, and soon thereafter $100.00 in money; that he was not sure the deed was acknowledged, but he thought it was, or Mr. Biser would not have made a payment on the property at the time he received it; that sometime afterward, perhaps an hour, or perhaps it might have been a day or two, Mrs. Biser returned with the deed, and requested hi m to have a deed made to Forest K. Biser, assigning various reasons therefor, one of which was that the purchase money was his. Ebright then destroyed the deed returned by Mrs. Biser, and had a deed made in the name of Forest IL Biser, and delivered the same to Mrs. Biser. That several months thereafter, Mrs. Biser returned this deed to Mr. Ebright, and requested him to
The fact, that afterward she returned the deed to Ebright, and requested him to make a deed to her son, can make no difference as to the title. Aside from the question of who holds the legal title, it is apparent from the testimony that this property was paid for by Mr. and Mrs. Biser. It is true, that Mrs. Biser and her son testify that such was not the case; but their evidence contains within itself sufficient improbability to cast doubt upon it. The family were evidently in embarrassed circumstances. Mrs. Biser was conducting a furniture store in her own name; and the debts these mortgages were given to secure were debts Shellenbarger and Wheeler had been compelled to pay as sureties on her notes, in the bank at Brownville, for money that had been borrowed to aid her in carrying on business. No pretense is made that the son had paid more than about $200.00 in purchasing and fixing up the premises; yet, a short time thereafter, a mortgage is given to him for the sum of $550.00; this of itself is sufficient to cast suspicion on the entire transaction.
Minors are peculiarly entitled to the favor of a court of equity; and it is the duty of the court to guard their interests with jealous care, and to enforce and secure
The judgment of the district court as to Shellenbarger and "Wheeler is affirmed. As there is nothing in the record to show the date of the judgment in favor of Brockaway, the cause is, therefore, remanded to the dis-' trict court of Nemaha county to find the amount equitably due on the mortgage of Forest K. Biser, and whether- said mortgage is prior to the Brockaway j uclgment, and to render a decree according to the order of priority of those liens.
Bemanded.