Bing v. Morse

• Decision Date: 03 June 1897
• Docket Number: 7261
• Citation: 71 N.W. 712,51 Neb. 842
• Parties: LOUISA J. BING ET AL. v. E. C. MORSE ET AL., ADMINISTRATORS
• Court: Nebraska Supreme Court

71 N.W. 712

51 Neb. 842

LOUISA J. BING ET AL. v. E. C. MORSE ET AL., ADMINISTRATORS

No. 7261

Supreme Court of Nebraska

June 3, 1897

ERROR from the district court of Lancaster county. Tried below before HALL, J. Reversed and dismissed.

Decree reversed and action dismissed, without prejudice.

Harwood Ames & Pettis, for plaintiffs in error.

B. F Johnson, contra.

OPINION

RAGAN, C.

In the district court of Lancaster county was filed a petition for the foreclosure of a real estate mortgage. The petition did not allege whether any proceedings had been had at law for the recovery of the debt secured by the mortgage, or any part thereof, nor whether said debt, or any part of the same, had been paid. The defendants submitted a general demurrer to the petition which the court overruled. The defendants refused to plead further, suffered a decree, and have filed a petition in error.

The sole question presented is the sufficiency of the petition to support the decree. Section 850 of the Code of Civil Procedure provides: "Upon filing a petition for the foreclosure or satisfaction of a mortgage the complainant shall state therein whether any proceedings have been had at law for the recovery of the debt secured thereby, or any part thereof, and whether said debt, or any part thereof, has been collected and paid." And section 851 provides: "If it appear that any judgment has been obtained in a suit at law for the money demanded by such petition, or any part thereof, no proceedings shall be had in such case, unless, to an execution against the property of the defendant in such judgment, the sheriff, or other proper officer shall have returned that the execution is unsatisfied in whole or in part, and that the defendant has no property whereof to satisfy such execution except the mortgaged premises." At common law a real estate mortgagee might bring an action at law to recover the debt secured by his mortgage and at the same time bring a suit in chancery to foreclose the mortgage and an action in ejectment for the possession of the mortgaged premises. It is probable that the statute quoted above was enacted to prevent a real estate mortgagee from pursuing all these remedies simultaneously. A statute of New York similar to the provisions of our Code just quoted, was construed in 1834 in Pattison v Powers, 4 Paige Ch. 549, and it was there said: "The complainant in a bill of foreclosure should aver, or state in the terms of the statute, that no proceedings have been had at law for the recovery of the debt secured by the mortgage, or any part thereof; or, if proceedings at law have been instituted, the bill should state what such proceedings were and against whom instituted; and it should also show that such proceedings at law had been discontinued, or that the complainant's remedy at law had been exhausted by the return of the execution unsatisfied for want of property whereon to levy." The New York statute was again considered in North River Bank v. Rogers, 8 Paige Ch. 647, and the court said: "The complainant, therefore, is bound to state in his bill whether any proceedings have been had at law to recover the debt secured by the mortgage or the defendant may demur to the bill for that cause; and if the complainant, in making the statement required by the statute, shows that a judgment has been recovered at law for the debt secured by the mortgage, or any part thereof, his bill will still be subject to demurrer, unless he goes further, and shows that he has exhausted his remedy at law upon such judgment by the return of an execution against the property of the defendant therein...