64 Neb. 834 | Neb. | 1902
This is a suit in equity for reformation of a mortgage executed and delivered by plaintiff and her husband to one Eugene Cusson, now deceased, whose executors are defendants. The plaintiff alleges in her petition that the mortgage in question was executed and delivered to said Ousson to secure a debt due the latter from William Topping, her husband; that she signed the note merely as surety for her husband; that at the time the mortgage was executed, her husband was the owner of certain prop
It appears in evidence that William Topping, husband of plaintiff, owned certain property in Nebraska City. Plaintiff was the owner of a farm six or seven miles distant from the city, which was her separate property. Mr. Topping applied to two loan brokers for a loan of $500, which he offered to secure by a mortgage upon his Nebraska City property. One of the brokers proposed the loan to the mortgagee, telling him that it would be secured by mortgage upon said city property, and the mortgagee consented to make the loan, and did so. There was a prior mortgage called the “Roddy mortgage” upon both tracts. One of the brokers, in drawing the mortgage, copied the description from' the Roddy mortgage, being misled, apparently, by the fact that the city tract was described by metes and bounds, whthe the farm land bore the unusual designation of “Lot 1,” etc. Mr. Topping testifies positively that he did not know his wife’s property wa.s included, and that the instrument was not read to her
We do not think the finding of the lower court can stand. Undoubtedly, in order to justify reformation of a written instrument in any substantial particular, the evidence of mistake must be clear, convincing and satisfactory. Slobodisky v. Phenix Ins. Co., 52 Nebr., 395; Home Fire Ins. Co. v. Wood, 50 Nebr., 381; Schrimper v. Chicago, M. & St. P. R. Co.,
We therefore recommend that the decree be reversed and the cause remanded for further proceedings.
Reversed and remanded.
Does not appear in 111 Iowa,—Reporter.