96 Neb. 515 | Neb. | 1914
This is an appeal from a decree of the district court for Frontier county quieting plaintiffs’ title to the southwest quarter of section 21, township 5 north, of range 28 west of the 6th P. M., situated in that county.
It appears that one John H.'Vandervort owned the land in question at the time certain notes secured by a mortgage thereon were given to one John Amidon; that later Vandervort conveyed the premises to his wife, Ella S. Vandervort, who owned the same at the time of her death,, which occurred July 1, 1890; that the plaintiff's in this action were her minor heirs. It further appears that the
The questions presented by this appeal are: Did the plaintiffs, who are the children and heirs of Ella S. Vandervort, deceased, have constructive notice of the pendency of the foreclosure action? Did the court in the foreclosure proceedings have jurisdiction to render judgment against them, and, if no service was obtained upon them in that suit, what are the respective rights of the parties in the present action?
“Where * * * neither the record nor the files in the case furnish proof that a notice for constructive service was. ever published, a judgment in such proceedings is subject to collateral attack.”
“A recital in the judgment that The court finds that due and legal notice of the filing and pendency of this action was given the defendants’ will not supply the lack of the facts necessary to confer jurisdiction.”
In that case the authorities are collected and commented on, and the rule above announced was there promulgated. In the case at bar no one was able to testify that service by publication had been made on the minor heirs of Ella S. Vandervort. The attorney who conducted the case stated that he had no recollection of the proceedings, or that he had ever been an attorney in the foreclosure suit at all. Following the rule in Duval v. Johnson, supra, we are constrained to hold that the evidence contained in the record in the instant case is sufficient to sustain the decree in plaintiffs’ favor. The conditions in the case at bar are practically the same as though the plaintiffs herein had never been made parties to; the foreclosure proceeding. Construing .the rights of the parties in the instant case, it seems clear that the interest purchased by Carrie E. Havens at the sale under the mortgage foreclosure decree was simply the life estate of John I-I. Vandervort.
In Currier v. Teske, 93 Neb. 7, it was said: “The sale of an interest in real estate on foreclosure of a mortgage can convey only the interest of the mortgage debtor, and where he owns only a life estate that is all that is sold,
It appears in the case at bar that John H. Vandervort, who was the only person served with a summons in the foreclosure case, Avas the owner of a life estate in the premises in question. Under the rule announced above, thé purchaser at the foreclosure sale acquired only the said life estate, and by her quitclaim deed she conveyed to the defendant Finnell only the estate Avhich was purchased at the foreclosure sale. When Finnell obtained his deed he went into possession of the premises, and has ever, since that date enjoyed such possession, has made improvements on the premises, and has paid the taxes thereon. It follows that the defendant Finnell should be held to be a mortgagee in possession. This Avas the holding of the trial court, which was clearly right.
In the accounting the district court found that the plaintiffs should be required to pay to defendant Finnell the sum of 1698.86, with interest from the date of the decree. The evidence clearly shows that there is at least that amount due upon defendant’s mortgage. Plaintiffs are satisfied to pay that amount, and have asked that the judgment of the district court be affirmed. They being the only parties who can complain, the decree of the district court is
Affirmed.