59 Neb. 724 | Neb. | 1900
This action was brought by Hiram D. Upton to foreclose a mortgage on real estate in Saline county. Ernest C. Holland answered, setting up a junior mortgage on the premises described in the petition. E. L. Sims, who is the fee owner of the property, filed an answer claiming title through a sale under a decree foreclosing an equitable lien in favor of himself and. antedating the mortgage of both Upton and Holland. To this answer the mortgagees replied. The reply of Holland was a general denial, while that of Upton was a general denial, coupled with the statement that he had taken his mortgage on the faith of a decree rendered by this court in an action between George and Eliza Betts and Sims involving the ownership of the land here in controversy. The trial court found the issues in favor of Sims, and rendered a decree quieting his title. Upton and Holland filed a joint motion for a new trial, and they have also joined in the petition in error. The substance of their contention is that while the lien upon which Sims grounds his title was anterior to the mortgages, it was a secret lien and, therefore, not entitled to priority.
It appears from the record that George Betts was at
There is in the briefs of counsel much discussion touching the power of this court to alter the decree rendered by it on December 14, 1888, but we think the question is not of vital importance. For present purposes we shall assume that the view of counsel for Upton and Holland is correct, and that a court of last resort has no rightful authority, after the adjournment of the term at which a judgment was pronounced, to grant a rehearing except
The plaintiffs in error may have loaned money on the faith of the judgment quieting Betts’ title, but they were certainly not induced by it to believe that Sims did not have a lien on the property. The mortgages involved in this litigation are junior incumbrances, and they are, therefore, not entitled to priority over Sims’ equitable lien, unless Upton and Holland were ignorant of the existence of that lien at the time their rights were acquiree This they have not shown; they have neither pleaded nor proved it. One who asks a court to give priority to a junior lien on the ground that it was obtained in ignorance of an elder latent equity must allege and prove that he acted in the transaction in absolute good faith. In 2
Since Holland’s reply was a general denial, it is very clear that the court could not have rendered judgment in his favor on the theory that he was a bona fide mortgagee. And it is equally evident that Upton’s allegation, that he took his mortgage on the faith of the decree rendered by this court in favor of Betts, is not an averment that he was without knowledge of Sims’ equitable lien. There was no finding of the trial court that Upton and Holland were good-faith incumbrancers; but if there had been, it would not respond to any issue presented by the pleadings. Besides the failure to plead want of notice, there was also a complete failure to prove that fact. There was no evidence whatever bearing upon the question. Holland, who was acting for Upton as well as for himself, testified that he relied on the decree in favor of Betts, and had no knowledge that any steps were being taken to modify it. He did not, however, testify that he was ignorant of the right of Sims to be subrogated to the
Affirmed.