Byron Reed Company v. Klabunde
| Decision Date | 08 June 1907 |
| Docket Number | 14,376 |
| Citation | 108 N.W. 133,76 Neb. 801 |
| Parties | BYRON REED COMPANY, APPELLEE, v. ERNEST KLABUNDE ET AL., APPELLEES; MARY MANGOLD, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ABRAHAM L SUTTON, JUDGE. Affirmed.
AFFIRMED.
J. J O'Connor, for appellant.
Dexter L. Thomas, Hall & Stout, Paul L. Martin and Morning & Berge contra.
OLDHAM, C. AMES and EPPERSON, CC., concur.
On November 3, 1888, Ernest Klabunde and his wife, Wilhelmina Klabunde, purchased an eighty-acre tract of land in Douglas county, Nebraska, from the Byron Reed Company, plaintiff in this action, and on March 16, 1891, they bought an adjoining sixty-acre tract from the same company. The title to the lands was taken in the name of Wilhelmina Klabunde, and the lands were occupied as a homestead by Ernest Klabunde and wife. As part of the purchase price of these tracts of land, three mortgages were executed to the Byron Reed Company for the respective sums of $ 1,350, $ 750 and $ 550. While these mortgages were unpaid, Wilhelmina Klabunde departed this life on the 11th day of February, 1894. After her death a paper, purporting to be the last will of the deceased, duly attested and witnessed as such, was offered and admitted to probate in the county court of Douglas county on the 10th day of March, 1894. There was no contest over the probate of the will, which was entered of record. The material provisions of the will, as probated and entered on the records of Douglas county, are as follows:
"I give to my son, August Klabunde, my home farm, where I now reside (describing it), all my household goods, four horses, two colts, four milch cows, ten head of young cattle, fifteen hogs, and all my farm machinery belonging to the farm, and now in my possession, with the following condition: That my son, August Klabunde, shall give to Ernest Klabunde, my husband, a good home with board and $ 150 per year, during the natural term of Ernest Klabunde's life, and this shall be a mortgage on said above described premises, nor shall my son, August Klabunde, have a right to sell the within described real estate without the consent of my husband, Ernest Klabunde." August Klabunde, the beneficiary in this will, was the only child and sole heir at law of Wilhelmina and Ernest Klabunde. He married; and the father, Ernest Klabunde, made his home with him in harmony with the provisions of the will until June 26, 1896, when, as appears from the testimony in the record, August Klabunde and his wife drove the old man from the premises, and since then have utterly refused to comply with the provisions of the will.
On December 12, 1894, and after the death of Wilhelmina Klabunde and the probate of her will, August Klabunde and wife executed a mortgage on the real estate for $ 2,500, for the purpose of renewing and taking up the three mortgages which had been executed by Wilhelmina Klabunde and her husband as before set out. Ernest Klabunde joined in this mortgage, and the three prior mortgages were accordingly satisfied. At the same time a commission mortgage of $ 125 was executed to the Byron Reed Company for its commission on the renewal. On December 20, 1895, in payment of certain instalments of interest and certain taxes, a new mortgage for $ 450 was given to the Byron Reed Company to cover these items.
On the 30th day of April, 1896, a suit was instituted by the Byron Reed Company to foreclose this latter mortgage for $ 450, subject to the $ 2,500 mortgage, which had been indorsed for value to one George W. Cook, and the $ 125 commission mortgage. The Mangold & Glandt Bank of Bennington, Nebraska, was made a party defendant in this action, because it was the holder of a junior mortgage on the premises, executed by August Klabunde and wife alone. When this foreclosure proceeding was instituted, defendant Ernest Klabunde called at the office of the Byron Reed Company concerning the suit, and they advised him to go to their attorney and have an answer prepared. This he did, and an answer was accordingly prepared for him and filed, admitting the execution of the mortgage sued upon and its priority as a lien over his equity as provided in the will of his deceased wife. Judgment was accordingly rendered and sale of the premises had, the Byron Reed Company being the purchaser at the sale, which was subsequently confirmed on the 22d day of March, 1898, and no appeal was taken from the decree of confirmation.
On December 7, 1898, the Byron Reed Company, by a quitclaim deed, conveyed its interest in the property to George M. Mangold, son of the cashier of the Mangold & Glandt Bank, which had paid the amount of the claim of the Byron Reed Company, and later paid the $ 2,500 mortgage owned by George W. Cook. On October 30, 1901, George, M. Mangold, at the request of Peter Mangold, executed a warranty deed purporting to convey the said real estate to one Ed Wiese, then a tenant on the land, who in turn executed a mortgage to the Mangold & Glandt Bank, and, as a part of the same transaction, conveyed the premises to Mary Mangold, wife of Peter Mangold. These two last mentioned deeds and the last mentioned mortgage were held in escrow in the Mangold & Glandt Bank, and neither delivered nor filed for record until the fall of 1903, and after Ernest Klabunde had begun an action to set aside the decree of foreclosure and the confirmation of the sale on the ground of mistake and fraud, and filed a notice of lis pendens.
On the 23d day of March, 1901, Ernest Klabunde commenced a suit in equity in the district court for Douglas county against the Byron Reed Company, seeking to set aside and vacate its decree of foreclosure and all proceedings had thereunder including the sheriff's deed to the Byron Reed Company, on the ground of fraud and mistake. His petition was dismissed in the district court, but on an appeal to this court, and on a rehearing of the cause, in an opinion delivered by HOLCOMB, C. J., 69 Neb. 126, the decree of the district court dismissing the plaintiff's bill was reversed, and a decree was entered here vacating and setting aside the decree of foreclosure and the sale had thereunder, and the cause was remanded for a new trial. When, in conformity with this mandate, a new trial was granted, amended pleadings were filed and all subsequent parties to the record were brought in. The Byron Reed Company filed an amended petition for the foreclosure of the $ 450 mortgage and alleged that it had conveyed all its interest in the premises by quitclaim to George M. Mangold, who in turn had conveyed to Weise, and Weise to Mary Mangold, who was alleged then to be the owner of the premises in controversy. Ernest Klabunde filed an answer and cross-petition in which he alleged the priority of his lien under the will of Wilhelmina Klabunde, and denied the execution and validity of the several mortgages executed after the probate of the will of his deceased wife. August Klabunde answered, denying the validity of the mortgages and alleging his interest in the land under the will of his mother. The Mangold & Glandt Bank answered, disclaiming interest, and alleging that their subsequent mortgage had...
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