Aultman & Taylor Co. v. Jenkins

• Decision Date: 11 February 1886
• Citation: 27 N.W. 117,19 Neb. 209
• Parties: THE AULTMAN AND TAYLOR COMPANY, PLAINTIFF IN ERROR, v. CHARLES AND SUSAN JENKINS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

27 N.W. 117

19 Neb. 209

THE AULTMAN AND TAYLOR COMPANY, PLAINTIFF IN ERROR, v. CHARLES AND SUSAN JENKINS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

February 11, 1886

ERROR to the district court for Richardson county. Tried below before MITCHELL, J., sitting for BROADY, J.

Affirmed.

Edwin Falloon, for plaintiff in error, cited: Watson v Voorhees, 14 Kan. 328. Godfrey v. Thornton, 1 N.W. 362. Mulloy v. Ingalls, 4 Neb. 115. White v. Gilbert, 10 Neb. 539. Harrison v. McWhirtir, 12 Neb. 152. Tucker v. Allen, 16 Kan. 312. Jones v. Evans, 7 Dana, 96. Osterhout v. Shoemaker, 3 Hill, 513. Edgell v. Hagens, 5 N.W. 136.

A Schoenheit, for defendants in error.

OPINION

MAXWELL, CH. 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.

The testimony tends to show the following facts: That some time prior to Nov. 15th, 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 1st 1884; one note for $ 250, due Nov. 1st, 1884, and one note for $ 245, due Nov. 1st 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 weak 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 promise that they would acknowledge the same, and transmit it to the agent. On the next day Susan Jenkins, the wife of Charles Jenkins, went before a justice of the peace, and acknowledged the execution of the mortgage, and stated that her husband's signature to the same was valid, but that he was unable to appear and acknowledge it. The justice thereupon, at her request, made a certificate of the acknowledgment of both husband and wife. The wife thereupon transmitted the mortgage...