Nelson v. Bevins

• Citation: 19 Neb. 715,28 N.W. 331
• Parties: NELSON v. BEVINS AND OTHERS.
• Decision Date: 27 May 1886
• Court: Supreme Court of Nebraska

19 Neb. 715

28 N.W. 331

NELSON

v.BEVINS AND OTHERS.

Supreme Court of Nebraska.

May 27, 1886.

J. J. O'Connor and Charles Ogden, for plaintiff.

A. Bevins, for defendant.

MAXWELL, C. J.

This cause was before this court in 1883, and is reported in 14 Neb. 153, and 15 N. W. Rep. 208. In that action it was stated, in substance, that on or about the twenty-second of September, 1879, Andrew Bevins purchased the premises in controversy, taking the title thereto in the name of his wife, Alice Bevins; that about the same time the defendants, Bevins and wife, applied to the plaintiff for a loan of $600 for the purpose of erecting a house on the land in question; that it was agreed between the parties that they should have the sum required, out of a note which Bevins then held for collection,--the defendants, Bevins and wife, to secure said money by executing a mortgage on said premises, due in one year from November 10, 1879; that about the tenth of November, 1879, Bevins gave the plaintiff his note for $600, and agreed that the mortgage should be executed in a short time; that about the twenty-fourth of that month Bevins and wife did execute a mortgage on said premises to the plaintiff for the sum of $350, and reciting therein the payment of $250, and providing that the mortgage should not be foreclosed until two years from the maturity of the note. Bevins, being the plaintiff's attorney at that time, placed the mortgage on record without presenting it to the plaintiff. In January, 1880, the plaintiff discovered the character of the mortgage, and refused to accept the same, and thereupon Bevins promised to have a new mortgage executed, due on November 10, 1880, and, relying upon this agreement, the plaintiff canceled the mortgage on record. Afterwards Bevins and wife refused to execute a new mortgage, and the action was brought to enforce specific performance of the agreement to execute a mortgage on the real estate in question, and for a decree foreclosing said mortgage, and for general relief. The court below in that case found for the plaintiff, enforced the contract made with Bevins for the execution of a mortgage due in one year from November 10, 1879, and rendered a decree foreclosing the same. The defendants, Bevins and wife, then appealed to this court, where, as the proof failed to show that Bevens was the actual owner of the property, he could not without special authority bind his wife by an agreement to make a mortgage, and, there being no proof of special authority, the agreement, so far as the wife was concerned, was held void. But, as the cancellation of the mortgage due in three years had been obtained under the promise of Bevins to execute a mortgage due in one year, the cancellation was set aside and the mortgage reinstated.

An examination of the brief of Judge Wakely, Bevins' attorney, will show that to have been the sole question upon which the appeal was taken, although, as an incident,...