Loney v. Courtnay
| Decision Date | 10 October 1888 |
| Citation | 39 N.W. 616,24 Neb. 580 |
| Parties | HUGH LONEY, APPELLEE, v. MARTHA I. COURTNAY AND DOMINICK G. COURTNAY, APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Otoe county. Heard below before HAYWARD, J.
D. G Courtnay, for appellants, cited: Blazier v. Johnson, 11 Neb. 404.
Abbott & Lansing, for appellee.
This is an action in equity to redeem certain real estate from an alleged void or voidable foreclosure. The plaintiff alleges in his petition "that he is the owner of the following described real estate lying and being in the county of Otoe and state of Nebraska, to-wit: the north half of the south-west quarter, and the north half of the south-east quarter of section five, in township seven north of range nine east of the sixth principal meridian, according to the government survey of said state of Nebraska; that on the 4th of December, 1872, this plaintiff joined with one Thomas Price in the execution of two promissory notes to one Henry Atkins, one for the payment of one thousand dollars in two years from that date, and the other for the payment of one hundred and twenty dollars in one year from that date; that to secure the payment of said notes the plaintiffs made, executed, and delivered to said Atkins a mortgage upon the above described tracts of land, and at the same time and for the purpose of further securing the payment of said promissory notes to the said Atkins, the said Thomas Price also made, executed, and delivered to the said Atkins a mortgage upon certain other land in Lancaster county, Nebraska, and in which last mentioned mortgage the wife of Price joined. Plaintiff further represents, that long after the maturity of said notes, and while this plaintiff was a resident of Canada, to-wit, on the 22d day of January, 1876, the said Henry Atkins commenced proceedings in this (Otoe district) court to foreclose the mortgage as aforesaid upon the above described tracts of land in Otoe county, and that a decree was rendered in this court ordering said lands to be sold to pay the amount claimed by said Atkins; that said decree was rendered without any appearance therein by this plaintiff, or any one for him, and the same was rendered upon default; that afterwards said property was offered for sale under said decree, and the same was bid in by the said Martha I. Courtnay for the sum of $ 430; that afterwards said sale was confirmed, and the sheriff made, executed, and delivered to the said Martha I. Courtnay the usual sheriff's deed in and to said tracts of land, and which said deed was long afterwards, to-wit, on the 14th day of June, 1880, duly filed for record in the office of the county clerk of said county, and by him duly recorded in book 8 of deeds, on page 277 thereof.
Plaintiff further charges that the only service of summons, and the only process by which it was claimed that he was brought into court in said cause was, by the publication of a printed notice to him, and that he had no knowledge of the pendency of said action, or of the existence of said pretended deed from the said sheriff to the defendant herein, until a short time since; that the said pretended service by publication was without authority of law, and that the court thereby acquired no jurisdiction to render said decree against this plaintiff, or to order the said sale of said tracts of land that the affidavit upon which said publication was based did not state the facts required by law to authorize a service by publication; that said affidavit did not state that the defendants in that action were non-residents of the state of Nebraska, and that personal service of a summons could not be made on them within said state; that said affidavit did not show that said action was one of those in which the statute permitted service by publication to be had; that the notice based on said affidavit for publication contained no description of the property involved in said suit and sought to be appropriated therein, nor did said notice mention the court wherein the said action was filed; that said Martha I. Courtnay is the daughter of the said Henry Atkins, and that before said sheriff's pretended sale, and before the execution of the said pretended deed from the sheriff to her, the said Atkins had given, delivered, transferred, and donated said notes to the said Martha I. Courtnay, and that before said pretended sale took place the said Martha I. Courtnay was the real party in interest in said decree; that she paid no consideration for said tracts of land, and was not an innocent purchaser thereof, and that the amount of...
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