Aultman & Taylor Co. v. Jenkins

• Decision Date: 11 February 1886
• Citation: 27 N.W. 117,19 Neb. 209
• Court: Nebraska Supreme Court
• Parties: AULTMAN & TAYLOR CO. v. JENKINS AND WIFE.

19 Neb. 209

27 N.W. 117

AULTMAN & TAYLOR CO.

v.JENKINS AND WIFE.

Supreme Court of Nebraska.

Filed February 11, 1886.

Error from Richardson county.

Edwin Falloon, for plaintiff.

A. Schoenheit, for defendant.

MAXWELL, C. J.

This action was brought by the plaintiff against the defendants, to foreclose a certain mortgage upon real estate, which mortgage, it is alleged in the petition, was executed by the defendants upon their homestead. The defendants answer separately. Charles Jenkins, the husband, in his answer alleges that the mortgaged premises are a homestead, and worth not to exceed $1,000; that by reason of sickness he was not in his right mind when he signed the mortgage, and the same was procured by the misrepresentation of the plaintiff's agent; that there was no consideration for the same; and “that defendant never acknowledged said mortgage before any officer.” Susan Jenkins, the wife, in her answer pleads want of consideration, etc. Both defendants pray for a cancellation of the mortgage. On the trial of the cause the court made special findings, which, in the view we take of the case, need not be referred to here. The court rendered judgment for the defendants, and dismissed the action. Plaintiff appeals.

The testimony tends to show the following facts: That some time prior to November 15, 1883, the defendant Charles Jenkins, in connection with one Hershey, purchased from the plaintiff a threshing-machine. Certain payments had been made on the same, but at the time above stated there was a large balance due. An agent of the plaintiff at the date indicated called upon the defendant, and induced him to give three notes to the plaintiff, as follows: One note for $125, due March 1, 1884; one note for $250, due November 1, 1884; and one note for $245, due November 1, 1885; and to secure these notes Jenkins and wife seem to have agreed to execute a mortgage on their homestead. This mortgage contains a provision that in case of default all the payments may be declared due, and an action instituted to foreclose. For several weeks prior to this time the defendant Charles Jenkins had been sick with typhoid fever, or typhoid pneumonia,--the witnesses disagree as to the disease,--and was then quite unwell. There is no doubt that he was sick and emaciated, but he seems to have been in possession of his mental faculties. The plaintiff's agent prepared the notes and mortgage, and some effort was made on that day to procure an officer to take the acknowledgment of the defendants. No officer could be found, however, at that time, and the mortgage was left with the defendants under the...