41 Neb. 675 | Neb. | 1894
This was an action to recover damages for the wrongful releasing of record of a certain real estate mortgage by Lucy D. Fowler, the mortgagee, after she had transferred to the plaintiff, Orin P. Whipple, two of the promissory notes secured by said mortgage, and before said notes had been paid. Upon a trial to the court there was judgment for the defendant, to reverse which the plaintiff prosecutes error to this court.
The undisputed facts, as disclosed by the record, may be summarized thus: M. C. and A. A. Hazard on the 16th day of October, 1888, executed and delivered to the defend
We will notice the several errors relied upon for a reversal of the judgment, although we will not attempt to follow the order in which they are discussed in the brief of plaintiff. We will first consider the objection urged to the allowing the defendant to amend her answer during the trial to correspond to the evidence introduced. The plaintiff had alleged in his petition in the court below, which the original answer when first filed admitted to be true, that by the laws of the state of Iowa the transfer of one of several notes secured by the same mortgage operates as a transfer pro rata of said mortgage. After the plaintiff had rested, the defendant, when making out' her case, introduced, without objection, the opinion in the case of Walker v. Schreiber, reported in'47 Iowa, 529, for the purpose of showing that under the laws of that state, where a mortgage secures several notes, which are transferred to different persons, each holder of the note takes a pro tanto interest in the mortgage, and the note first maturing must be the first paid. The defendant was thereupon permitted by the court, over plaintiff’s objection, to withdraw her said admission in the answer and to amend her pleading to conform to the evidence. This was proper and in accordance with a familiar and just rule in this state of long standing, that where testimony is received without objection, the court may permit the pleadings to be amended to
Error is assigned upon the ruling of the court below in admitting the testimony of the defendant’s witness, George M. Traver, on the question of the value of the mortgaged premises. It is insisted that the witness had not shown himself competent to testify upon that subject. We are satisfied that the criticism upon the ruling referred to is not without merit, and that Traver’s testimony was incompetent and should have been excluded; but it does not follow that the judgment should be disturbed for that reason. It is the established doctrine of this court that the admission of incompetent testimony, where the cause is tried to the court without a jury, is not sufficient ground for the reversal of the case. (Enyeart v. Davis, 17 Neb., 228; Willard v. Foster, 24 Neb., 213; Richardson v. Doty, 25 Neb., 424; Ward v. Parlin, 30 Neb., 376; Stabler v. Gund, 35 Neb., 651.) The reason for the rule given in the opinion in the cases cited need not be now restated. These authorities control the decision in the case before us upon -the question under consideration.
Errors were likewise assigned upon the admission, over the objection of plaintiff, of the testimony of several of the witnesses; but these rulings require no special attention, since they fall within the rule stated above.
It is urged that the judgment is unsupported by the evidence and is contrary to the law of the case. It is undisputed that the defendant executed a release of the mortgage in controversy, and that the same was recorded in the proper county, prior to the transfer of the mortgaged premises to Wright. There is, however, an irreconcilable conflict in the testimony as to who placed the release upon record, how the same came to be executed, and whether there was an actual delivery of the release to Evans. The testimony adduced on the part of the plaintiff tended to show that there
In Stanley v. Valentine, 79 Ill., 544, it was held that where a mortgagee executed a release of a mortgage and places the same in the hands of a third party, to be delivered to the mortgagor upon the performance by him of certain conditions, which the mortgagor never performed, and by accident or mistake was afterwards placed upon record, without ever having been delivered to the mortgagor, such a release is a nullity. Mr. Justice Walker, in delivering the opinion of the court, in discussing the question observed: “It is manifest to all that a deed cannot be operative until it is delivered. Perkins, who wrote his treatise on conveyancing more than three centuries since, says: ‘And if I make a deed and deliver it to a stranger as an eserowl, to keep until such a day, etc., and upon condition i.hat if, before that day, he to whom the eserowl is made shall pay me ten pounds, give me a horse, enfeoff me of a manor, or perform any other condition, then the stranger
In the case at bar it is urged that Wright was a bona fide purchaser of the real estate covered by the mortgage, since at the time the conveyance was made he found the record of the mortgage released by the mortgagee, and he had no actual notice of the transfer of the notes, or that they had not been paid; hence it is contended that the purchaser had a perfect right to rely on the record, and he took the land free of the lien of the mortgage. How far an innocent grantee would have beef) protected it is unnecessary to stop to consider, since it does not appear that Wright was an innocent purchaser of the property. To become such he should have paid full value, and parted with the consideration before he learned of the existence of the mortgage. The rule is too familiar to require the citation of authority to support it. The records fail to disclose that Wright ever paid the purchase price. The mortgage was of record, which showed on its face that the last of the notes secured thereby matured on November 12, 1891, or
There is another question argued in the brief of counsel which may be properly -noticed at this time, arid that is whether a mortgagee can execute a valid release of a mortgage after he has assigned to a third party the notes secured by the mortgage, and whether such satisfaction, entered of record, will operate to discharge and cancel the record of the mortgage, as to subsequent purchasers or mortgagees in good faith, and without notice. There is considerable conflict in the adjudicated cases upon the proposition. Some state the doctrine broadly that a discharge entered upon the record of a mortgage, by a mortgagee, after he has sold
The case cited in 13 Ohio State is very much like the one at bar. The facts were these : William Hurel executed and delivered to one Peter Little a mortgage on certain real estate to secure a note for $200, which mortgage was duly recorded. Little sold the note to plaintiff’s testator, William Swartz. Afterwards, but before the maturity of the note, Little wrongfully, and without the knowledge of Swartz, entered on the margin of the record of the mortgage a release in due form. Subsequently, the mortgagee sold and conveyed said mortgaged premises to the defendant Leist. The holder of the note brought his action against the purchaser, praying the foreclosure of the mort
In Ogle v. Turpin, supra, the rule is stated in this language: “Where a mortgagee, after an assignment of the notes secured by his mortgage, acquires the equity of redemption, and enters a formal release of the mortgage upon the record, a party taking the mortgage from him upon the same premises, without notice of the assignment of the notes, will acquire a lien superior to that of the holder of the assigned notes. There being no presumption of law that the payee of notes secured by mortgage has transferred the same before purchasing the equity of redemption from the mortgagor, a person taking a mortgage from the payee will not be held chargeable with the notice that the notes secured in the first mortgage have been assigned, but he may rely upon the record as showing title in his mortgagor.”
The rule which we adopt does not conflict with the opinions of this court in Studebaker v. McCargur, 20 Neb., 500, and Daniels v. Densmore, 32 Neb., 40. In the first case it was merely decided that the assignment of one of several notes secured by the same mortgage, without any assignment of the mortgage, is an assignment pro tanto of the mortgage. In the second case it was held that the party to whom the note is transferred, on being paid the
There is another ground upon which an affirmance of the judgment may be properly placed, and that is plaintiff has not been damaged by reason of the release of the mortgage. Stated differently, owing to the low value of the premises, the mortgage was no security for the payment of the notes owned and held by plaintiff. The different witnesses examined at the trial do not agree in their estimates of the value of the property. Those given by plaintiff’s witnesses vary from $14,000 to $18,000, while defendant’s witnesses fixed the value from $-3,300 to $7,500. Asa reviewing court, we must accept as the correct value of the property the amount as slated by the pers ms who testified in favor of the successful party in the lower court. As stated above, the highest estimate of value named by any witness on that side of the case was $7,500. There was an unpaid first, or prior, mortgage on this real estate for the
Affirmed.