Triplett v. Parmlee

16 Neb. 649 | Neb. | 1884

Cobb, Ch. J.

It will not be deemed necessary to take up any one of the twenty points which the plaintiff in error makes in his petition in error, as I think the case turns on a single proposition.

The plaintiff below, Parmlee, held a duly recorded mortgage on the farm of one Streeter. Streeter being in possession of the farm, sold to the defendant certain buildings situated thereon, which were removed therefrom by the defendant. Afterwards, and without knowledge of the removal of said buildings, the plaintiff accepted a deed of the said farm from Streeter in full payment of the debt, to secure which the mortgage was given. Now, can he maintain an action at law against the defendant for the value of the buildings? The district court held that he could, and rendered a judgment in his favor.

The cause was argued and submitted to this court by counsel for plaintiff in error at the January term, but no appearance has been made or brief furnished on behalf of defendant in error.

The question is an important one, and one in the discussion of which we should have the assistance of counsel on the one side as well as on the other.

There can be no doubt that, had the plaintiff below known of the intention of Streeter to sell the buildings and of the defendant to remove them, before it was done, he could have maintained a suit for an injunction against them, provided the removal of the buildings from the land would so reduce its value as to render it a scant or insufficient security for the mortgage debt, and this, although Streeter might be shown to be personally responsible. Keeping this in view, and at the same time bearing in mind the great underlying principle that equity only interferes in cases where the law furnishes no adequate remedy, I see no escape from the conclusion that no, action at law can be maintained by the plaintiff either against Streeter or the defendant for waste committed on the mortgaged premises while in the legal possession of Streeter.

On the other hand, if the mortgage debt of the plaintiff is to be considered as paid by the conveyance of the land to him by Streeter; then surely the plaintiff has suffered no wrong and is entitled to no remedy, and while it is true that the plaintiff alleges in his petition and proved on the trial that the land without the buildings was of less value than the amount of the mortgage, yet he accepted the deed from Streeter as payment, and surrendered or canceled the note. And I think that as long as that transaction is allowed to stand as a full- payment of the mortgage debt as between plaintiff and Streeter, it must be regarded as a payment as to strangers. •

I am therefore of the opinion that the plaintiff’s petition fails to state a cause of action, and that the verdict and judgment are unsupported by evidence.

The judgment of the district court is reversed and the cause dismissed.

Judgment accordingly.

The other judges concur.