16 N.W. 471 (Neb. 1883), Cheney v. Cooper

Citation:16 N.W. 471, 14 Neb. 415
Opinion Judge:MAXWELL, J.
Party Name:PRENTIS D. CHENEY, EXECUTOR, APPELLANT, v. THEODORE L. COOPER ET AL., APPELLEES
Attorney:Mason & Whedon (P. D. Cheney with them), for appellant. T. Appleget & Son, for appellees,
Case Date:July 17, 1883
Court:Supreme Court of Nebraska
 
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Page 471

16 N.W. 471 (Neb. 1883)

14 Neb. 415

PRENTIS D. CHENEY, EXECUTOR, APPELLANT,

v.

THEODORE L. COOPER ET AL., APPELLEES

Supreme Court of Nebraska

July 17, 1883

APPEAL from Johnson county. Tried below before WEAVER, J.

Judgment of the district court reversed, and decree entered in favor of the plaintiff.

Mason & Whedon (P. D. Cheney with them), for appellant.

The judgment is not a bar. Hull v. Blake, 13 Mass. 155. Weller v. Moore, 49 Mo. 229. Wharton's Ev., § 781. 3 Blackstone, 296. Freeman on Judgments, § 261. Home v. Brown, 16 How. 365. Pillow v. Elliott, 25 Tex. 323.

T. Appleget & Son, for appellees, cited: Hendrix v. Rieman, 6 Neb. 523. Covington v. Sargent, 27 Ohio St. 233. Day v. Valitte, 25 Ind. 43. Sims v. Zane, 24 Pa. 243.

OPINION

[14 Neb. 416] MAXWELL, J.

This is an action to foreclose a mortgage executed in the year 1875 by Cooper and wife upon certain real estate in Johnson county. It is alleged that Joy and wife claim an interest in the premises. The defendants admit the execution of the mortgage, but plead as defenses thereto: First, Usury. Second, Deny that William G. Davis was ever the lawful owner of said mortgage and accompanying notes, but allege that said Davis was and is an imaginary person. Third, That in 1878 said Davis commenced an action on said notes and mortgage in the United States circuit court for the district of Nebraska against these defendants, and a judgment was rendered thereon in their favor. Fourth, That the cause of action did not accrue within five years. Judgment was rendered in favor of the defendants, and the action dismissed. The plaintiff appeals to this court.

It is unnecessary to determine whether there is usury in the original contract or not, as the proof clearly tends to prove that Davis purchased the notes in question before maturity for a valuable consideration, and without notice of any defense thereto. This being so he took them free from the defense of usury. Wortendyke v. Meehan, 9 Neb. 221, 2 N.W. 339. And a bona fide purchaser, for value, of a negotiable promissory note secured by mortgage, before maturity and without notice, takes the mortgage as he does the note, discharged of all equities which may exist [14 Neb. 417] between the original parties. Webb v. Hoselton, 4 Neb. 308. Moses v. Comstock, 4 Neb. 516. Carpenter v. Longan, 83 U.S. 271, 16 Wall. 271, 21 L.Ed....

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