36 Neb. 1 | Neb. | 1893
This action was brought in the district court of Douglas county to foreclose a mortgage executed by the defendant Hervey, upon lots 2 and 6, in block 1, in South Exchange Place, in South Omaha. The mortgage was given to secure four notes, each for the sum of $200. At the time of trial three of these notes were owned by the plaintiff and one by Norman Kuhn. It is alleged in the petition that Hervey sold these lots to Hayes and that in the conveyance he assumed the payment of the notes. This Hayes in his answer denies, but alleges that he had no knowledge of the execution of the deed until long after its date; that the deed was never delivered to nor accepted by him; that it was not recorded, and the defendant never has and does not now claim any right or title thereunder. The court below rendered a decree of foreclosure against Hervey, but dismissed the action as to Hayes, on the ground that the proof failed to show a delivery of the deed.
The testimony tends to show that in May, 1888, Hayes was the owner of one-half of Hayes’ addition to Norfolk; that Wilson & Miller, a firm of dealers in real estate, had a half interest in said addition, although the title was in Hayes; that Wilson & Miller sold the lot in said addition to one Brady, and received therefor $25 in cash and a tract of land in Dakota. This deed, for some cause, was not
Affirmed.
