114 Neb. 346 | Neb. | 1926
This suit was brought August 20, 1920, in the district court for Buffalo county by F. C. Haver, trustee of certain property in Kearney under deed of trust, who was, after decree entered, supplanted by Robert J. Webb as such trustee, against John W. Patterson and Mary Patterson, husband and wife, and E. W. Exley, as trustee in bank
Judgment for Morris was entered as prayed, from which plaintiff, defendant Exley, and Mrs. Epps appeal, relying for reversal upon the following alleged errors, to wit: (1) The court erred in overruling the motion of plaintiff to strike the petition in intervention of Dan Morris from the files. (2) The court erred in sustaining the motion of intervener Morris to strike from the files the amended answer to the amended petition of intervention. (3) The court erred in refusing to allow plaintiff to file his amended answer to the amended petition of intervention of Morris. (4) The findings and judgment of the court are not sustained by the evidence and are contrary to law.
The record discloses that prior to February, 1918, the North American Hotel Company, an Iowa corporation, owned a number of lots in Kearney, upon which it had commenced the construction of a hotel. On February 19,
It was provided on the face of each of the bonds, after identifying such trust deed, that “To all the provisions of which trust deed this bond and each coupon hereto attached are subject, with the same effect as if the said trust deed were herein fully set forth.”
The work of construction was begun shortly after the date of the trust deed, and continued intermittently for some years. Later, it was abandoned altogether by the hotel company, parts of the constructed portion being left without roof over it, and all without windows, thus exposing the plumbing which had been installed, as well as the building generally, to the elements, resulting in deterioration. Certain public spirited citizens of Kearney, among them defendant Patterson and intervener Morris, became concerned about this state of affairs, and proceeded to investigate the situation. After some negotiation, and on May 26, 1920, the hotel company, in consideration of $1 in cash and the transfer to it of 201 shares of its capital stock, sold and
In May, 1920, Morris entered into an oral agreement with Haver, as trustee, with approval of Patterson, the owner, by the terms of which Morris agreed to furnish labor and materials for the completion of the structure, for which he was to receive certificates of indebtedness which would be prior to the rights of the bondholders, and in accord with the provisions of the trust deed above mentioned. It was also understood that an action to foreclose the trust deed should be commenced, in which a receiver would be applied for, with power to complete the hotel and issue receiver’s certificates for the expense thereof as expenditures were made, to be paid out of the proceeds of the sale of such trust property prior to the payment of any of the bonds. Immediately thereafter, Morris contracted for materials, and proceeded with the completion of the building. He also completed the payments upon a large amount of materials and millwork which had previously been acquired by the hotel company and transferred to Patterson.
In August, 1920, Haver concluded not to ask for the appointment of a receiver in the foreclosure proceedings, which was unknown to Morris, but to immediately com
It will be seen that the trustee named in the deed of trust had complete authority, and it became his • duty to complete the structure, and safeguard the same when necessary in the furtherance of the enterprise. The cost of this completion became superior and prior in security under the trust deed and the bonds to the $150,000 nominated therein. This authority is not only granted in the deed, but also in each bond covered thereby. Thus the trustee could personally, as such, complete the structure, or could do so by contracting with others; if by contracting with others, they to the amount of their respective contracts became and were subrogated to his rights under the trust deed pro tanto. The necessity for such completion on the part of the trustee had arisen at the time he contracted with the appellee Morris, and existed at all times thereafter. As Haver’s successor desired, as the evidence discloses, not to permit Morris to proceed further, the debt of $18,997.19 owing the latter became due, and his right to foreclose ripened, and he became entitled to a foreclosure thereof as prayed. This brings us to the question: Did the court err in refusing to strike Morris’ petition of intervention, filed after the decree in favor of plaintiff was entered, and before a sale? In such case, the court seeks to adjust the rights of interested parties and do those things which equity and good conscience require. In this case, the cause of action held by Morris antedated in its inception the commencement of this suit. His interests were at all times
In filing such petition in intervention, the orderly procedure would have been to have asked leave before filing, and, with such request, submit for consideration such petition duly verified, or by way of affidavit present the facts. However, as the right of Morris to intervene in this case is without question, it would have been an abuse of discretion to have refused the request if timely made, which we find it was, both under section 8552, Comp. St. 1922, as well as within the inherent equity powers of the court. We are warranted in this construction of such statute by section 9518, Comp. St. 1922, which provides: “The rule of.the common law, that statutes in derogation thereof are to be strictly construed, has no application to this' Code. Its provisions and all proceedings under it shall be liberally construed, with a view to promote its object and assist the parties in obtaining justice.”
We also said in Jenkins Land & Live Stock Co. v. Kimsey, 99 Neb. 308: “Our Code provides that the action (foreclosure of mortgage) shall be commenced in the district court; that the petition must allege that no proceedings
The decree in this case found the amount due plaintiff, and provided, among other things, that sale was not to be had for 20 days; that proceeds thus realized should be first applied to the satisfaction of the sum found to be due plaintiff; that any balance should remain subject to the further order of the court; that if the proceeds were found insufficient to satisfy the decree, then plaintiff should have the right to apply for a deficiency judgment. Such decree remained open as to all matters inherent in the facts set forth in the petition as to those not parties related thereto in interest, as intervener Morris herein.
Thus, as so many questions were left open and undetermined, both as to law and fact, and being guided by the facts reflected by the record, and' the object sought to be covered by section 8552, supra, together with the spirit of liberality in which it. should be construed, we are impelled to hold that the filing of Morris’ petition in intervention was within statutory time, and within his right.
However, if we should have accepted appellant’s contention that leave should have been first obtained before filing such petition, the overruling of the motion to strike the petition is equivalent to granting leave to file it. Ringen Stove Co. v. Bowers, 109 Ia. 175.
The question is also raised as to the remaining personal property turned over to Patterson by virtue of the contract with the hotel company. This contract authorized him to dispose of such thereof as was not needed, or not suitable for
The other assignments of alleged error have been carefully considered, and are found to be without merit. The considerations of the trial court are in all things
Affirmed.