54 Neb. 500 | Neb. | 1898
S. B. Stough, L. E. Baltzley, William Sheffel, and Peter Sheffel commenced this action in the district court of Dakota county to foreclose a mortgage executed to their assignor, S. K. Bittenbender, by the Ponca Mill Company on July 11, 1894. The mill company was a corporation engaged in the grain and milling business at Ponca from the latter part of 1888 until February 3, 1893, at which time, its mill and elevator being destroyed by fire, it ceased to do business. The mortgage in suit covered the entire property of the company and was given, pursuant to a resolution adopted by the board of directors, to secure the payment, of four promissory notes for the aggregate- sum of $3,400. Each of the plaintiffs is the assignee and owner .of one of these notes and all joined in this action to foreclose the mortgage! The corporation was duly served with summons, but did not answer or otherwise appear in the case. On his application, and without objection on the part of the plaintiffs, S. P. Mikesell, a creditor and stockholder of the corporation, was permitted to intervene. In his answer to the petition Mikesell alleged that the mill company was insolvent on July 11, 1894, that there was no consideration for the mortgage, that it was executed by John Stough as president and S. K. Bittenbender as secretary of the corporation for the purpose of defrauding the creditors and stockholders,- and that the plaintiffs were not bona fide purchasers of said notes. The trial in the district court resulted in favor of the intervener. There was a decree canceling the notes and mortgage and the plaintiffs have appealed the cause to this court.
Affirmed.