Bank of Alma v. Hamilton

• Decision Date: 19 November 1909
• Docket Number: 15,836
• Citation: 123 N.W. 458,85 Neb. 441
• Parties: BANK OF ALMA, APPELLANT, v. DAVID N. HAMILTON ET AL., APPELLEES
• Court: Nebraska Supreme Court

123 N.W. 458

85 Neb. 441

BANK OF ALMA, APPELLANT, v. DAVID N. HAMILTON ET AL., APPELLEES

No. 15,836

Supreme Court of Nebraska

November 19, 1909

APPEAL from the district court for Harlan county: HARRY S. DUNGAN JUDGE. Affirmed.

AFFIRMED.

John Everson, W. S. Morlan and J. G. Thompson, for appellant.

G Norberg and Gomer Thomas, contra.

OPINION

ROOT J.

This is an action to quiet plaintiff's title to a quarter section of land in Harlan county. Defendant Hamilton made a cross-demand for an accounting and prevailed. Plaintiff appeals.

In 1895 Hamilton and a Mr. Gardner traded certain chattels to Mrs. Carpenter for the farm in question, and she, by their direction, conveyed it to plaintiff's cashier. The land was subsequently transferred to plaintiff, and by it sold to a Mr. Robinson, but a deed has not been made to the purchaser. Plaintiff alleges that it has had adverse possession of the land for more than ten years next preceding the commencement of this suit. Counsel for plaintiff suggests in his briefs, and argued at the bar, that the bank was a mortgagee in possession; that Hamilton's right to redeem accrued more than ten years before this action was instituted and the statute of limitations bars him from any relief. Plaintiff asks for affirmative equitable relief and it should do equity as a condition precedent to receiving any assistance from the court. Kerr v. McCreary, 84 Neb. 315, 120 N.W. 1117. The statute of limitations does not deprive the court of power to impose those conditions. Hobson v. Huxtable, 79 Neb. 340, 116 N.W. 278.

Coming therefore to the merits of the case, the cashier testifies that he loaned Hamilton and Gardner $ 600 upon the latter's representation that it was to be used as boot money to close up the trade with Mrs. Carpenter; that title to the land was taken by the witness as security for the payment of that loan; that subsequently he loaned the parties, for Hamilton's exclusive benefit, $ 100; that the notes have not been paid, but that Gardner, about two years after the execution of the deed, orally renounced all right to redeem the land. Hamilton did not participate in the negotiations which were carried on with plaintiff's cashier by Gardner. Hamilton testifies that no money was paid Mrs. Carpenter in the trade, but that Beddoe, her agent and brother-in-law, received about $ 100 commission; that the witness did not authorize Gardner to borrow money from the bank or pledge Hamilton's interest in the land. It is argued that the bank ought to recover $ 700, with interest because no one explicitly contradicts the cashier's testimony that that amount of money was loaned on the credit of the transfer from Mrs. Carpenter. There is, however, evidence tending strongly to corroborate Hamilton and weaken plaintiff's evidence on this point. In the first place, the $ 641 note is signed by Gardner alone, whereas the bill for $ 106 bears the signature of Gardner and Hamilton. At the time the Carpenter deed was made there were unreleased chattel mortgages from Gardner to plaintiff and to its cashier, aggregating $ 2,000, on file with the county clerk of Harlan county. Gardner and the cashier testified that the former owed little, if anything, to the mortgagees, and they were protecting ...