Burrows v. Hoveland
| Decision Date | 02 May 1894 |
| Citation | 40 Neb. 464,58 N.W. 947 |
| Parties | BURROWS v. HOVELAND ET AL. |
| Court | Nebraska Supreme Court |
1. A vendee in a contract for the sale of land made to him by the state has such an interest in the real estate described in such contract as may be made the subject of sale and mortgage.
2. An assignment made by a vendee in an executory contract for the sale of real estate made to secure the payment of money is in effect a mortgage of the vendee's interest in the real estate described in such contract.
3. Where two mortgages are executed and delivered on the same property by the same grantor at different times, the mortgage last executed and delivered will take precedence if first filed for record in the office of the recorder of deeds in which the real estate mortgaged is situate, if such last executed mortgage was made and delivered for a valuable consideration, in good faith, and without any notice on the part of the mortgagee therein of the existence of the prior mortgage.
4. A contract for the sale of school lands issued by the state contained the provision that no assignment of the contract should be valid unless such assignment should be indorsed on the contract. Held:
(1) That such provision was inserted in the contract for the benefit of the state, and it only could insist upon a compliance therewith.
(2) That the failure of the vendee in said contract to indorse thereon an assignment thereof made by him did not render such assignment void.
Appeal fom district court, Madison county; Powers, Judge.
Action by C. B. Burrows against George B. Hoveland and others, impleaded with James Stuart and others, to foreclose a mortgage. From a decree for plaintiff, defendants appeal. Affirmed.Allen, Robinson & Reed, for appellants.
Wigton & Whitham, for appellee.
On the 9th day of April, 1883, the state of Nebraska sold the S. E. 1/4 of section 16, township 21 N., and range W. of the sixth P. M., in Madison county, to George B. Hoveland, and executed and delivered to him a contract for a deed. On the 1st day of May, 1888, Hoveland, by a writing duly signed, witnessed, and acknowledged by him, assigned the contract to one C. B. Burrows, to secure the payment of some money then owing the latter by Hoveland. This assignment was not on the state contract, nor was the latter delivered to Burrows. The assignment made by Hoveland to Burrows was recorded in the office of the recorder of deeds of Madison county on the 19th day of January, 1889. Default having been made in the payment of the money which the assignment of this contract was made to secure, Burrows brought this suit in equity to foreclose the assignment of the contract as a mortgage. James Stuart, to the petition filed by Burrows in the case, filed an answer, in which he denied that Burrows had any lien or claim on the land described in the state contract aforesaid. He further alleged in his answer that, prior to the date of the execution of the assignment from Hoveland to Burrows. Hoveland, with the knowledge and consent of Burrows, had assigned to him (Stuart) the said state contract, and that he then was the owner of the same. To this answer Burrows filed a reply, denying the allegations of new matter therein, and alleging that, at the time he took the assignment of the state contract from Hoveland, he did so in good faith, and without notice of any claim, right, title, or interest in the real estate mentioned in said state contract claimed by said Stuart, and that, at the time he filed the assignment from Burrows for record, no conveyance or assignment of said land contract, or the real estate therein mentioned, from Hoveland to Stuart, was of record in said Madison county. The district court rendered a decree in favor of Burrows, and Stuart brings the case here on appeal.
The evidence in the case summarized established the following facts, in addition to those above stated: In the year 1886, Hoveland became indebted to Stuart, and, to secure the payment of the debt, he made an assignment in writing of the contract he held from the state, and delivered it to Stuart. This assignment of the state contract was not written on the latter, but on a separate piece of paper. On the 29th day of March, 1889, Hoveland, still being in debt to Stuart, executed a formal assignment of the state land contract to Stuart, to secure the payment of such debt, and delivered the said contract to Stuart. This last assignment of the contract was written thereon. At this time Hoveland took up and destroyed the...
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