Bond v. Dolby

• Decision Date: 01 January 1885
• Citation: 23 N.W. 351,17 Neb. 491
• Parties: EDWIN BOND, APPELLEE, v. THOMAS J. DOLBY, MARY DOLBY, AND EUGENE H. ANDRUS, APPELLANTS
• Court: Nebraska Supreme Court

23 N.W. 351

17 Neb. 491

EDWIN BOND, APPELLEE, v. THOMAS J. DOLBY, MARY DOLBY, AND EUGENE H. ANDRUS, APPELLANTS

Supreme Court of Nebraska

January 1, 1885

APPEAL from the district court for Lancaster county. Heard below before POUND, J.

AFFIRMED.

Marquett Deweese & Hall, for appellant Andrus.

Lamb Ricketts & Wilson, for appellee.

OPINION

REESE, J.

This is an action for the foreclosure of a mortgage. The appellant purchased the land of the mortgagor, and is made a party defendant to the action. The petition alleges that as a part of the purchase price he assumed and agreed to pay the debt secured by the mortgage and thereby became personally liable to the plaintiff for the payment of the same. The answer of appellant denies the allegations of the petition and alleges that the mortgagor, Dolby, never owned the premises described in the mortgage. This allegation is denied by the reply.

From the evidence introduced upon the trial it appears that Dolby, the mortgagor, attempted to secure the mortgaged premises by a homestead entry, and while occupying them he executed the mortgage. The B. & M. R. R. Co. contested his right to the land, and the decision was rendered in favor of the R. R. Co., the land being held not subject to homestead entry. Afterwards Dolby purchased the land from the R. R. Co., by contract, and subsequently sold it to appellant, transferring the contract by assignment executed by Dolby and wife. In support of the allegation in the petition that Andrus assumed and agreed to pay the debt, Dolby testifies as follows:

Q. State whether or not you purchased the claim of the B. & M. R. R. Co. to the land? If so, when?

A. I did; I purchased it from the B. & M. R. R. Co. about June, 1883.

Q. About what time did you sell the land to the defendant, Andrus?

A. About the first of October, 1883.

Q. Did you tell him about the mortgage to Bond?

A. I did.

Q. What arrangement, if any, did you make with Andrus about paying Bond's mortgage?

A. I made arrangements to pay it by settling with him for two hundred dollars.

Q. Was any money left in his hands to pay it, and if so, how much?

A. There was two hundred dollars left with him for that purpose.

Andrus testified that he did not agree to pay the mortgage, but that two hundred dollars was deducted out of the purchase price and retained by him with which to pay the unpaid taxes on the land and "fight" the mortgage. Thus a question of fact was presented to the trial court for decision upon conflicting testimony.

In view of the rule so well established by this court, that it will not disturb findings of fact by the trial court upon conflicting testimony, we cannot molest this finding. It is urged by appellant that under the pleadings the burden of proof is upon plaintiff and he must establish the fact of the agreement by a preponderance of evidence. This is true, and was doubtless considered by the trial court when deciding the case. There was testimony sufficient, if uncontradicted, or if believed by the trier of fact, to sustain the finding. The witnesses, with the exception of Dolby, whose deposition was read, were before the court. Their manner of testifying, their demeanor while upon the stand, with the surroundings, were all considered by the learned judge who heard the case. The question of the weight of their testimony was for him to decide. Blackburn v. Ostrander, 5 Neb. 219. McCune v. Thomas, 6 Neb. 488. Andrus alone appeared and made a defense. This defense was made only in so far as it could affect the mortgage. No effort was made to release Dolby from the obligation of the debt. The court might well hesitate before concluding that Dolby would furnish money to Andrus for the purpose of "fighting" the mortgage and still be liable himself for the payment of the debt evidenced by the note. The finding of the court that appellant made the alleged agreement and is liable thereon must stand.

An attorney's fee of $ 35.75 was allowed by the court. Appellant insists that this was error. The note provides for the payment of an attorney's fee of ten per cent in case action should be brought thereon. It was executed the 5th day of May, 1879. The act approved ...