64 Neb. 792 | Neb. | 1902
One J. C. Wilson commenced an action in the district court of Hamilton county against Henry Griess and Christina Griess, his wife, the Farmers’ State Bank of Saronville, Nebraska, Jacob Griess and the Sutton National Bank, to foreclose a certain mortgage for $350, executed by Henry Griess and Christina Griess upon the southwest quarter of section 27, township 9 north, range 5 west, situated in said county. The petition for foreclosure was in the usual form; service was made upon all of the defendants, and the Farmers’ State Bank of Saronville fthed its answer in the nature of a cross-petition praying for the foreclosure of a mortgage alleged to have been executed to it by the defendants Henry Griess and Christina Griess, upon the same tract of land to secure the payment of a promissory note for $815.45, dated June 2, 1894. Default was taken against the defendants, Henry Griess and Christina Griess, and on the 8th day of December, 1896, a decrée was rendered foreclosing the mortgage of the plaintiff, Wilson, and also the mortgage belonging to the Farmers’ State Bank of Saronville. The amount found due said bank was not inserted in the decree, and afterwards, on the 29th day of September, 1897, it was agreed in open court by and between the defendants Henry Griess and Christina Griess and the Farmers’ State Bank of Saronville that so much of the decree as related to the mortgage of the bank should be vacated, and that the defendants Henry Griess and Christina Griess be allowed twenty days to plead to its said answer and cross-petition. The cross-petitioner was allowed ten days thereafter to reply, and thereupon the cause was continued until the next term of
A large amount of evidence was taken upon the trial bearing upon all of the questions raised by the pleadings, and a portion of said evidence will be hereinafter noticed. If the acknowledgment of the mortgage in question is void, the decree of the district court must be affirmed. We will now proceed to determine that question.
1. It is contended by the appellees that the acknowledgment of the mortgage is void because the land described therein is the homestead of Henry Griess and his wife, Christina Griess; that Theodore Miller, the notary who took the acknowledgment, was at the time an officer, director and stockholder in the First National Bank of Sutton ; that said bank was the real party in interest; and that said bank and the said Miller had a direct pecuniary beneficial interest in the transaction. It is the established law of many of the states that where the officer taking an acknowledgment of a mortgage has a direct pecuniary or beneficial interest in obtaining the same he is disqualified thereby, and the acknowledgment is void. This rúle of law is commented upon, and in fact acknowledged and approved, by this court in Horbach v. Tyrrell, 48 Nebr., 514, and Havemeyer v. Dahn, 48 Nebr., 536. We will now examine the record and evidence herein, and determine whether or not this case comes within this well-settled rule. The evidence shows without conflict that on and before the 2d day of June, 1894, the First National Bank of Sutton held a note against Henry Griess for $1,592, besides some other items of unsecured indebtedness; that it had in its possession, as agent for the appellant, a note signed by Henry Griess for $490 which was also unsecured; that at said time Theodore Miller, the notary public who took the acknowledgment to the mortgage in question, was a di
2. In Horbach v. Tyrrell, and Havemeyer v. Dahn, supra, both in the syllabi and in the body of the opinions, it is conceded as a general proposition that an officer who is a party to a conveyance or interested therein is disqualified from taking the acknowledgment of a mortgage in which he has a beneficial interest. In the case of Workman’s Mutual Aid Ass’n v. Monroe, 58 R. W. Rep. [Tex.], 1029, the notary taking the acknowledgment of a contract creating a lien upon the homestead was a director and stockholder in the association obtaining the lien, and it was held that the acknowledgment was void because he had a pecuniary interest in the transaction. In Bexar Building & Loan Ass’n v. Heady, 50 S. W. Rep. [Tex.], 1079, the notary was secretary and a stockholder of the association. It was held that an acknowledgment taken by him was void because he had a direct pecuniary beneficial interest in the transaction. In Kothe v. Krag-Reynolds Co., 50 N. E. Rep. [Ind.], 594, it was held that an acknowledgment of a mortgage taken by a notary who was a stockholder and officer in the corporation which was the mortgagee was void, both irrespective of the statute and also under the express provisions thereof prohibiting an officer of a corporation from acting as a notary in its business. This
For the foregoing reasons we recommend that the decree of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
Affirmed.