Daniels v. Densmore
Decision Date | 06 May 1891 |
Citation | 48 N.W. 906,32 Neb. 40 |
Parties | JOHN DANIELS v. GEORGE DENSMORE |
Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before CHAPMAN, J.
AFFIRMED.
Chas L. Hall, and Chas. O. Whedon, for plaintiff in error, cited Dickenson v. State, 20 Neb. 81; Thomas v Reynolds, 29 Kan. 310; Low v. Fox, 56 Iowa 221.
L. W. Billingsley, and W. H. Woodward, contra.
This action was brought against the assignee of the mortgagee to recover $ 40 actual damages and $ 100 as a penalty, for failing to enter a release of the mortgage when the same was paid and satisfied, and the defendant was thereupon requested to release the same, and the sum allowed by law for such release was duly tendered.
The plaintiff, in his petition, after setting out the making and delivery of the said note and mortgage, alleges: "That after the making of said note and mortgage by the Houstons to the said Franklin J. Cochran, said Franklin J. Cochran assigned the same by his written indorsement on above said mortgage and note to John Daniels; that also after the making of said mortgage and note by the said Houstons to the said Cochran, this plaintiff purchased the said real estate from the said Houstons, subject to said promissory note and mortgage securing the same; that after the purchase of said real estate by plaintiff as aforesaid, plaintiff did, on the 28th day of March, 1885, pay for and fully discharge said promissory note as appears by the written indorsement on the back of the same; that after the payment of said note and mortgage as aforesaid, plaintiff demanded of the said defendant that he have the said mortgage released of record, as he was by law compelled to do; that plaintiff, by his agent, tendered said Daniels sufficient money to pay for the proper expenses of the same, and the said Daniels refused to release the said mortgage, and has refused for more than seven days after being requested so to do."
Daniels, in his answer, denies that he is the mortgagee, his personal representative, or assignee, but admits the execution of the mortgage and admits that he purchased the note secured by said mortgage, but denies that the mortgage was assigned to him or that Densmore asked him to release said mortgage or that he refused to release the same.
On the trial of the cause judgment was rendered in favor of the defendant in error for the sum of $ 40.
Sec. 26, chap. 73, Compiled Statutes, provides that "Any mortgage that has been, or may hereafter be, recorded, may be discharged by an entry on the margin of the record thereof, signed by the mortgagee or his legal personal representative or assignee, acknowledging the satisfaction of the mortgage, in the presence of the register of deeds or his deputy, who shall subscribe the same as a witness, and such entry shall have the same effect as a deed of release duly acknowledged and recorded.
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