Chadron Loan & Bldg. Ass'n v. Hamilton
| Decision Date | 18 June 1895 |
| Court | Nebraska Supreme Court |
| Parties | CHADRON LOAN & BUILDING ASS'N v. HAMILTON ET AL. |
1. The lien of a judgment does not exceed the actual interest the judgment debtor had in the land at the time a transcript of such judgment rendered by a justice of the peace was filed in the office of the clerk of the district court of the proper county, and such judgment lien is subject to every equity at that time existing against the judgment debtor.
2. Where land intended to be included in a mortgage is omitted by mistake, and a transcript of a judgment against the mortgagor is subsequently filed in the office of the clerk of the district court of the proper county, the lien of the judgment creditor is subject to the equity of the mortgage.
Appeal from district court, Dawes county; Kinkaid, Judge.
Action by the Chadron Loan & Building Association against E. L. Hamilton and others. From a judgment for plaintiff, certain defendants appeal. Affirmed.Spargur & Fisher, for appellants.
T. F. Powers and J. L. Caldwell, for appellee.
On July 30, 1891, the Chadron Loan & Building Association filed in the office of the clerk of the district court of Dawes county its petition praying for the foreclosure of a mortgage executed August 15, 1889, to it by E. L. Hamilton and his wife. This mortgage was filed for record September 9, 1889. Incidentally there was sought the reformation of said mortgage, so as to describe correctly the west half of the southeast quarter, instead of the mistaken description of the west half of the southwest quarter, of the same section as was included in the mortgage. There were made defendants with the mortgagors certain judgment creditors of E. L. Hamilton, to wit, Lewis Ross & Co., L. A. Brower, and Charles Morrissey, of whom only the two last named appeal. The judgment in favor of L. A. Brower was by confession in the county court, for the sum of $100, and of it a transcript was filed in the office of the clerk of the district court of Dawes county March 3, 1891. Charles Morrissey obtained his judgment against E. L. Hamilton before Omaha H. Wilson, a justice of the peace of Dawes county, for the sum of $150, on June 22, 1891, and on the same day a transcript thereof was filed in the office of the clerk of the district court aforesaid. The service of the summons in the foreclosure proceedings was made on both Morrissey and Brower, August 9, 1891. It is claimed by the appellee that upon the summons in error were indorsed the words “injunction allowed,” and as it was the duty of the clerk to make this indorsement, it is presumable that this claim is well founded, in the absence of a showing by the appellants' transcript what indorsements in fact were upon said summons.
There was issued on a judgment rendered in favor of Lewis Ross & Co. against E. L. Hamilton an execution, on which the land against which the...
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