74 Neb. 309 | Neb. | 1905
This is a proceeding in error to reverse a judgment of the district court for Platte county. To insure a proper understanding of the issues involved, it seems necessary to make a detailed statement of the facts and conditions as they appear from the record. On December 5, 1894, Paul Masilonka borrowed of Stull Bros. $800. He gave his note secured by a real estate mortgage covering the west half of the northeast quarter of 18-19-2. A portion of the interest accruing on this loan was evidenced-by separate notes secured by a second mortgage. Paul Masilonka died intestate. Default was made in the payment of interest accruing on the loan, and on March 5, 1896, William Stull and Louis Stull,, partners as Stull Bros., commenced an action in the district court for Platte county, ■where the land is situate, for a foreclosure of the second mortgage. Among the defendants named in the petition were the unknown heirs of Paul Masilonka, deceased. In the body of the petition the land was described as the west
Thereafter, on the 14th day of July, 1898, William Stull and Louis Stull, partners as Stull Bros., filed a petition in the district court for Platte county against Agnes Masilonka, widow of Paul Masilonka, deceased, Anton Masilonka and his wife, Mary Winski and her husband, Anna Stempa and her husband, Aggie Masilonka, Kate Masilonka, John Masilonka, Valeria Masilonka, Sophia Masilonka and Paul Masilonka, minor heirs of Paul Masilonka, deceased. In this petition the execution and delivery of the mortgages above referred to were set out, together with the proceedings of foreclosure. It recited the death of Paul Masilonka, and that Agnes Masilonka, Anton Masilonka and his wife, Mary Winski and her husband, Anna Stempa and her husband, Aggie,Masilonka, Kate Masilonka, John Masilonka, Valeria Masilonka, Sophia Masilonka and Paul Masilonka were the sole heirs of Paul Masilonka, deceased. It further recited that the plaintiffs had entered into ,the possession of the premises, and an error in the description of the property in the publication of the notice in the foreclosure proceedings; that, by reason of the error in the process, the defendants appeared to have an equity of redemption in the premises. The petition further recited that the mortgage indebtedness was still unpaid; prayed for the appointment of a guardian ad litem for the minor defendants; that a decree might be entered directing the defendants, within a short day, to be fixed by the court, to pay the plaintiffs the amount thereof, with interest, and that, upon failure to pay said amount within the time fixed, defendants be barred and foreclosed of all title, interest and equity of
Thereafter, on the 10th day of September, 1903, Aggie Masilonka, Kate Masilonka, Vera Kodzeij, John Masilonka, Sophia Masilonka and Paul Masilonka filed their petition in the district court for Platte county against Louis Stull and William Stull, partners doing business in the firm name of Stull .Bros., Anton Masilonka, Mary Winski, Anna Stempa, Adam Peir and - Peir, his wife, whose Christian name is unknoAvn, and Israel Gluck; the petition being as follows:
*314 “The plaintiffs herein complain of the defendants, and for cause of action allege:
“1. Plaintiffs and the defendants Anton Masilonka, Mary Winski and Anna Stempa were on the 14th day of July, 1898, the owners, by title in fee simple, as the joint tenants, of the west half of the northeast (N. E. quarter of section eighteen (18), in township nineteen (19) north of range two (2) .west of the 6th principal meridian, in Platte county, Nebraska, subject to the estate for life therein of their mother, Agnes Masilonka. And upon the death of the said Agnes Masilonka, to wit, on the 8th day of February, 1899, plaintiffs and the defendants above named became, have been continuously since said date, and now are, seized of the full legal and equitable title of said premises.
“2. On the said 14th day of July, 1898, the said Louis Stull and William Stull filed in this court their petition against the plaintiffs herein, and the defendants Anton Masilonka, Mary Winski and Anna Stempa, impleaded with the said Agnes Masilonka, the object and prayer of which were to obtain a decree of strict foreclosure of a certain mortgage then existing upon the above described premises. Said suit was prosecuted to final decree on the 15th day of November, 1898, whereby the aforesaid defendants therein, owners of the above described property, were ordered to redeem said property by paying to the said Louis Stull and William Stull, within the period of 30 days from and after said date, the full amount of such mortgage debt, with interest thereon and expenses incurred on account thereof, to wit, the sum of $251. And it was by decree further ordered and adjudged that, upon the failure of such owners to so pay the said sum of $251, together with interest and cost of said suit, within the aforesaid period, the right, title, interest, and equity of redemption of such owners, and each thereof, in and to said property be forever barred and foreclosed, and the title thereto of the said Louis Stull and William Stull forever quieted and confirmed.
*315 “3. The plaintiff, John Masilonka, and the defendant, Anton Masilonka, were personally served with summons notifying them of the pendency of said suit. Service in said cause was had upon the plaintiffs herein, Aggie Masilonka, Kate Masilonka, Sophia Masilonka and Paul Masilonka, and also upon the defendants herein, Mary Winski and Anna Stempa, by publication of. notice in a newspaper of said Platte county, and not otherwise; no service whatever being had in said suit upon the plaintiff herein, Yera. Kodzeji. No appearance was made in said suit by the defendants therein, plaintiffs and defendants in this cause, or either thereof, nor was any authorized appearance, made therein in their behalf, or in behalf of either of them.
“4. Plaintiffs herein, and each thereof, were at the date of the decree aforesaid infants under the age of 17 years, and are each now within the age of 21 years. The said Henry C. Carrig is the duly appointed guardian of the said John Masilonka, Kate Masilonka and Paul Masilonka, and as such guardian and next friend of said infants prosecutes this suit in their behalf. The said Anton Masilonka, Mary Winski and Anna Stempa, having refused to join herein as plaintiffs, are accordingly made parties defendant hereto.
“5. The plaintiffs and defendants herein, owners of said property, have been at all times since the date of said decree, and now are, unable to comply with the terms and conditions thereof, and said decree remains unreversed and unsatisfied. The said Louis Stull and William Stull, upon the failure as aforesaid of the owners thereof to redeem said property within the period of 30 days from and after the entry of said decree, took possession of said property, claiming to own and hold the same by title absolute, and the said Stulls and their grantees have continuously since said date enjoyed the possession, rents and profits thereof. The defendants Israel G-luck, Adam Peir and-Peir, his wife, whose first or Christian name is unknown to plaintiffs, claim an interest in said property*316 through, certain mesne conveyances, as the successors of the said Louis Stull and William Stull.
“6. There is manifest error to the prejudice of these plaintiffs in the decree aforesaid and in the proceedings of said cause antecedent thereto, viz.: (1) The court failed to determine who among the defendants in said cause were infants, and failed to name or sufficiently describe the defendants for whom it assumed to appoint a guardian acl litem. (2) The appointment in said cause of a guardian ad litem for certain of the defendants therein, and the subsequent appearance in said cause of said guardian, are irregular and erroneous, for the reason that it does not appear for whom said guardian was appointed, or in whose name or interests he assumed to act. (3) The plaintiffs herein, and each thereof, although known by said Louis Stull at the date of said decree to be infants, were not represented in said cause, and their interests in the subject thereof were not protected. (4) The only object or purpose of said suit being to obtain a decree of strict foreclosure of a mortgage upon the real property hereinbefore described, at the date thereof owned and held by the defendants in said cause by title in fee simple, failed to state a cause of action against said defendants, or either thereof, and the court accordingly erred in adjudging that the plaintiffs, Louis Stull and William Stull, were entitled to any relief therein. (5) The plaintiffs in said cause, Louis Stull and William Stull, were not upon the facts alleged in their petition therein entitled to a decree of strict foreclosure against the defendants in said cause, owners and holders of the legal title of the real property in said petition described. (6) There is no authority of law for a decree of strict foreclosure against the holder of the legal title of the mortgaged property. (7) The guardian who appeared in said cause, by appointment of the court, negligently failed to guard or protect the interests of the infant defendants therein, in omitting to challenge the sufficiency of the petition of the plaintiffs therein. (8) And the plaintiffs*317 say that they-and their codefendants in said suit, the said Anton Masilonka, Mary Winski and Anna Stempa, had at the date of the decree aforesaid, andnoAv have, by reason of the facts hereinbefore alleged and shoAvn, a full, complete, and perfect defense to the aforesaid suit, and that said decree is as to these plaintiffs inequitable and erroneous. Wherefore plaintiffs pray, upon such terms and conditions as may be found reasonable and just: (1) That the decree .hereinbefore mentioned may be vacated and Avholly set aside, and that plaintiffs may be permitted to appear in said cause and make defense thereto. (2) That plaintiffs’ title and interest in and to said real property be forever quieted and confirmed as against the defendants, William Stull and Louis Stull, and all persons claiming through and under them including the defendants Adam Peir and Israel Gluck. (3) That said premises be partitioned in the manner prescribed by law among the several OAvners thereof as their interests .may be made to appear. (4) That an account may be taken of the rents and profits of said premises for the period that the same have been occupied by the several defendants respectively, and that the plaintiffs may have judgment for the amount found in their favor. (5) For such other and further relief as may appear to be just and equitable in the premises.”
To this petition William Stull ansAvered, denying such allegations of the petition as Avere not admitted; setting up the foreclosure proceedings already described; the sale of the real estate thereunder, and the confirmation thereof, together Avitli the subsequent action brought by them, and the decree of the court thereunder; the transfer of the real estate by the purchasers at the judicial sale; the payment of the $800 mortgage by one of the purchasers by renewal mortgage; and asked that the plaintiffs’ petition be dismissed. Adam Peir, the present owner of the real estate, ansAvered, challenging the authority of Henry C. Carrig as guardian for the minor plaintiffs, and also setting out the foreclosure proceedings, with a copy of the
The scope of inquiry may be embraced in two questions: First. Did the defendants in error, plaintiffs below', have an interest in the subject matter such as to entitle them to any relief whatever? Second. If they did have such interest, is their petition sufficient, under the facts disclosed by the record, to entitle them to the relief granted by the court below?
It will be observed that their prayer for relief consisted, first, of a request that the so-called decree of strict foreclosure be set aside, and that they be permitted to appear in that case and defend; second, that their title to the real
It is contended that the first notice to the unknown heirs of Paul Masilonka, deceased, was unauthorized and void for two reasons: First, because the affidavit of one of the plaintiffs that the names and whereabouts of the unknown heirs of Paul Masilonka were to the plaintiffs unknown is insufficient; that the affidavit of both plaintiffs is required. This contention cannot be sustained. The affidavit of William Stull recites that “the names and residences and whereabouts of said heirs, are to the plaintiffs unknown.” The trial court acted upon that affidavit and found it to be sufficient, and ordered service by publication on account thereof. The affidavit was positively sworn to, and contained the information upon which the court was authorized to act. The provisions of the code are to be liberally construed, with the view to promote its object and assist the parties in obtaining justice. Code, sec. 1. And second, because it is said that the affidavit was not attached to the petition as the statute required. The -record does not disclose whether the affidavit was attached to the petition or not, and it is sufficient to say that, in the absence of direct proof to the contrary, the proceedings of the district court will be presumed to have .been regular. We hold therefore that the district court acquired jurisdiction of the parties through the first notice in the foreclosure proceedings. The notice was com*
The district court therefore having acquired jurisdiction of the parties, the inquiry next turns to the validity of the decree under the pleadings. It is said that the original petition was insufficient to support the decree because of the misdescription of the land in the body of the petition. The petition, however, referred to the mortgage, a copy of which Avas attached to the petition as an exhibit, and in the copy so attached the real estate was correctly described; and it is very doubtful whether this court would be justified in disturbing the decree had it been based upon this petition alone. No variance between the allegations in the petition and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice; and, whenever it is alleged that a party has been so misled, the fact must be proved to the satisfaction of the court, and it must also be shown in AArhat respect he has been misled; and, AAdienever the variance is not material, as provided in the last section, the court may direct the. fact to be found according to the evidence, and may order an immediate amendment, without costs. Code, secs. 138, 139. Furthermore, the property having been correctly described in one part of the petition, we think it Avould be a violation of the spirit of the code to hold that the decree is not supported by the original petition. HoAvever, the plaintiffs in the foreclosure proceedings filed an amended petition, setting out the same cause of action, and asking for the same relief. In the
There is another reason why the judgment cannot be sustained. The mortgage involved in the foreclosure proceeding was confessedly a valid mortgage; it has never been paid. The defendant, Adam Peir, has succeeded to all the rights of the mortgagee, and even though the foreclosure proceedings Avere held void, the mortgagor (in this case his heirs) Avill not be permitted, in equity, to avoid the effects of such foreclosure, without offering to pay Avhat is equitably due under the decree, Avith interest. Loney v. Courtnay, 24 Neb. 580; Merriam v. Goodlett, 36 Neb. 384; Hall v. Hooper, 47 Neb. 111.
We recommend that the judgment of the district court be reversed and that the cause be remanded, with directions to enter judgment in conformity with this opinion.
Ry the Court: For the reasons stated in the foregoing
Reversed avith directions.
The following opinion on motion for rehearing was filed June 20, 1906. Motion overruled:
The facts in this case are set forth at length in the former opinion, ante, p. 309. The defendants in error upon reargument urgently insist that this action is brought only for the purpose of revieiving the action to quiet title and for strict foreclosure, and that since in the petition in that case the Stulls alleged that the present plaintiffs “appeared to have an equity: of redemption in the land,” this Avas such an admission of the title of the present plaintiffs, and was so inconsistent Avith the assertion of any title in the Stulls under the first foreclosure proceedings, that they ought not to be allowed to object that the present plaintiffs have not a sufficient interest in the second proceeding for a. strict foreclosure to enable them to maintain the present proceeding for a neAV trial therein.
It is further contended that the first foreclosure was void for want of proper affidavit for service by publication upon unlmoAvn heirs. In that portion of the former opinion treating of the validity of the affidavit for publication,
We think, howeAer, that this modification does not militate against the correctness of the position taken as to. the validity of the service by publication. The affidavit for service upon unknoAvn heirs states positively that the plaintiffs had no knowledge of the names and Aidiereabouts of such heirs. The court might in its discretion have called for further proof of the facts alleged,'but its judgment and order made with such proof before it are not void and open to collateral attack. Counsel has cited several cases from Wisconsin and Kentucky as upholding his contention that the affidavit Avas insufficient. In the Kentucky case it is held that an affidavit by only one of several plaintiffs is insufficient, but the allegations of the affidavit are not set forth in the opinion. In Kane v. Rock River Canal Co., 15 Wis. *179, the affidavit of one of the plaintiffs merely stated that there were parties interested in the premises Avho were unknown. It did not even show that they were unknown to him, and the court said:
“The question then is, whether, where there are several complainants in a partition suit, an affidavit by one of them that there are parties interested who. are unknoAvn,*324 which by its most favorable construction can be only held to mean that they are only unknown to him, is sufficient to authorize an order of publication which will give jurisdiction over unknown owners, there being nothing to show that there were not other owners known to the other plaintiffs? We think it is not.” This case is followed in Mecklem v. Blake, 19 Wis. 419, but the form of the affidavit is not set out in the opinion. These cases therefore are distinguishable from the one at bar.
Section 83 of the code providing for service upon unknown heirs provides that, if “it shall appear by the affidavit of the plaintiff annexed to his petition, that the names of such heirs or devisees, or any of them, and their residence are unknown to the plaintiff,” etc. This affidavit therefore is evidently intended to be attached to the petition and presented to the court with the petition, so it may determine before making the order whether a cause of action exists against the unknown heirs, and whether the proof is sufficient to require an order to be made respecting service upon such persons. We see no good reason why one plaintiff should not make the affidavit, provided that he sufficiently shows lack of knowledge on the part of each of the other plaintiffs as to the names and residences of the unknown heirs, which under some circumstances one of the plaintiffs could no doubt do.
2. If the decree rendered in the first foreclosure proceeding was valid, and the sale thereunder barred and foreclosed all the interest of the plaintiffs herein in the land, the fact that the Stulls, after they had parted with the title which they acquired under the sale in the foreclosure proceedings, began an action to quiet their title by reason of what they erroneously thought was a defect in the original suit, and prayed for a strict foreclosure and a decree quieting their title, would in no wise harm or prejudice the plaintiffs herein. The decree in that case, though erroneous, would give them no new rights or revest them with the title which had been divested by the foreclosure proceedings in the first case. If they had personally ap
To uphold the plaintiffs’ contention we must ignore the first foreclosure proceedings. Though these proceedings were irregular in several respects, they were not void and are not subject to collateral attack. Further than this, the plaintiffs have pleaded no good grounds for opening up-for review the first foreclosure proceedings, pleaded in the answer. This is essential whether the proceeding seeking to open up the decree is under the code provisions or by original action in equity. As long as the first decree must stand, to open the second for review would serve no good purpose.
The former opinion is adhered to, and the motion for rehearing
Overruled.