Federal Farm Mortg. Corporation v. Adams

• Decision Date: 14 August 1942
• Docket Number: 31405.
• Citation: 5 N.W.2d 384,142 Neb. 202
• Parties: FEDERAL FARM MORTGAGE CORPORATION v. ADAMS et ux.
• Court: Nebraska Supreme Court

5 N.W.2d 384

142 Neb. 202

FEDERAL FARM MORTGAGE CORPORATION v. ADAMS et ux.

No. 31405.

Supreme Court of Nebraska

August 14, 1942

Syllabus by the Court.

1. "'Statutes should be so construed as to give effect to the intention of the legislature, and if a statute is plain and unambiguous, there is no room for construction or interpretation.' Shellenberger v. Ransom, 41 Neb. 631, 59 N.W. 935, 25 L.R.A. 564." Federal Farm Mortgage Corporation v. Thiele, 137 Neb. 626, 290 N.W. 471.

2. Sections 20-2144 and 20-2145, Comp.St.1929, "are for the protection of the debtor and to prevent the probability of two judgments being rendered against him for the same debt. In none of these provisions, however, is the mortgage security released. In one of them, where a judgment has been obtained, it is necessary that the judgment creditor exhaust his legal remedy by execution before proceeding to foreclose the mortgage." Quesner v. Novotny, 116 Neb. 84, 215 N.W 796.

3. "To entitle a mortgagee, who has taken a judgment, to foreclose, it is only necessary that the judgment and a return of execution as required by section 851, Code of Civil Procedure (now § 20-2145, Comp.St.1929), be set out. It is not necessary in the petition to state the nonexistence of other proceedings to enforce the judgment." Montpelier Savings Bank & Trust Co. v. Follett, 68 Neb. 416, 94 N.W 635.

4. Competent evidence to establish the facts alleged entitle the plaintiff to a foreclosure of its mortgage.

5. "Where an instrument containing the words 'I promise to pay' is signed by two or more persons they are deemed to be jointly and severally liable thereon." Comp.St.1929, § 62-117.

6. "If the obligation be joint and several, the plaintiff may treat the contract as joint and join all of the obligors, or he may treat it as a several obligation and bring his action against each separately, even though their interest be joint." 11 Standard Ency. of Procedure, 979.

7. Evidence in the record examined, and held to sustain the decree entered by the trial court.

Ralph E. Adams, of Red Cloud, for appellants.

Butler, James & McCarl, of McCook, and Phillip M. Wellman and Franklin L. Pierce, both of Omaha, for appellee.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, and YEAGER, JJ., and ELLIS, District Judge.

EBERLY Justice.

This is an appeal from a final order of the district court for Furnas county finding generally in favor of plaintiff and decreeing the foreclosure of a real estate mortgage and the sale of the premises therein described to satisfy the amount adjudged due thereon, and finding against the defendants Ralph E. Adams et al. It appears without dispute that on and prior to the 11th day of October, 1934, the fee simple title of the premises here in litigation was vested in George W. Space alone. Elizabeth M. Space was then, and thereafter remained, his wife. So far as the record discloses, she possessed no interest in the premises referred to save and except what was acquired by her by reason of her marital relations with George W. Space. On or about October 11, 1934, George W. Space and Elizabeth M. Space, made and delivered to the Land Bank Commissioner their promissory note in writing payable to him, in the sum of $6,000. On the same day the parties last named, to secure the payment of such obligation, executed and delivered to the Land Bank Commissioner their mortgage deed containing the usual and customary conditions, which was on the 19th day of October, 1934, duly recorded in the office of the county clerk of Furnas county as required by law, and thereby mortgaged to the Land Bank Commissioner the property described in such mortgage deed. The money evidenced by the foregoing obligation was duly paid over to and received by George W. Space, who personally executed the "Remittance Statement" as "borrower", and acknowledged the "receipt of the proceeds of the loan as set forth therein." Certain bankruptcy proceedings were entered into by George W. Space, which are not of importance in the present proceeding. He and his wife, Elizabeth M. Space, conveyed the mortgaged premises here in suit to Ralph E. Adams by warranty deed executed October 2, 1939, and duly recorded in Furnas county on October 7, 1939. George W. Space departed this life on February 23, 1941, and neither he nor his wife is a party to this appeal.

The default in the payments stipulated for in the note and mortgage and the breach of the mortgage conditions is not denied by the defendants.

It is alleged in the petition filed in this cause that upon the default in the terms and conditions of the mortgage by George W. Space, plaintiff elected to and did declare the whole of the balance of the principal of such indebtedness represented by such note and mortgage to be due and payable as of December 27, 1938, and instituted an action on such note against George W. Space in the district court for Kearney county, Nebraska. Due service of summons was had upon such defendant, and upon appearance duly made by such defendant, a judgment was duly and regularly entered in favor of the plaintiff and against such George W. Space in the sum of $6,621.70, with interest at 6 per cent. per annum from the 5th day of February, 1940. The petition further alleges that on the 27th day of December, 1940, execution in due form was duly issued out of the district court for Kearney county, Nebraska, "and on the same day the sheriff of Kearney county, Nebraska, made his return on said writ of execution showing that after diligent search he was unable to find goods or chattels, lands or tenements of the said George W. Space in Kearney county, Nebraska, on which to levy, and said sheriff returned said writ to the court wholly unsatisfied."

In the discussion of appellants' contentions it must be remembered that appellant Adams is not the debtor or mortgagor in any sense of the word. He acquired title to the mortgaged premises without assuming the mortgage indebtedness, and prior to the entry of judgment in appellee's action against the maker of the note involved in these proceedings. He appears throughout this litigation as attorney at law representing Space, and is thereby chargeable with notice of all proceedings had.

Taking up appellants' contentions in reverse order, we are wholly unable to agree with their statement that because of the terms of section 20-2145, Comp.St.1929, "the bringing of an action on the note alone and the obtaining of a judgment (at law) thereon, is a waiver of right to foreclose" and, "is bar to foreclosure." Such are not the words, nor the legal effect, of the statute cited in support of this proposition, nor do the interpretations thereof made by this court furnish any support for appellants' contention. At most, the existence of this judgment at law operated in favor of the judgment debtor as a temporary suspension of the right to contemporaneously maintain an equitable action to enforce the mortgage securing the same, until the prescribed execution has been issued and duly returned by the officer receiving the same as...