DiMick v. Grand Island Banking Co.

• Decision Date: 30 June 1893
• Citation: 55 N.W. 1066,37 Neb. 394
• Parties: DIMICK v. GRAND ISLAND BANKING CO.
• Court: Nebraska Supreme Court

37 Neb. 394

55 N.W. 1066

DIMICK

v.GRAND ISLAND BANKING CO.

Supreme Court of Nebraska.

June 30, 1893.

Syllabus by the Court.

1. In 1881 one N. purchased from the U. P. R. Co. a certain tract of land on credit. This land was sold to various persons prior to 1887. In that year, the contracts being the property of one S., he mortgaged the same for a large amount to one D. He also conveyed the same to the G. I. Bank, and soon afterwards assigned the contracts to the bank. D. began an action to foreclose a mortgage in his favor, and made the bank a party. After the answer of the bank was filed, the bank, at D.'s request, paid $212 to the U. P. R. Co., then due on the land contracts. No claim was made for this in the foreclosure proceedings. In an action by the devisee of D. to have the bank deliver up the contracts, and quiet the plaintiff's title in the land, held, that the bank was entitled to $212, and interest thereon, and a decree of foreclosure to that effect was right.

2. The provision of the Code that the plaintiff shall state in his petition whether any proceedings have been had at law for the recovery of the debt, or any part thereof, applies alone to formal mortgages, and not to mortgages or liens arising out of the equities between the parties.

Appeal from district court, Hamilton county; Bates, Judge.

Action to quiet title by Sarah A. Dimick against the Grand Island Banking Company and the Union Pacific Railway Company. Judgment for the banking company, from which plaintiff appeals. Affirmed.E. J. Hainer and E. L. King, for appellant.

O. A. Abbott, for appellee.

MAXWELL, C. J.

This is an action to quiet title to real estate. On the trial of the cause in the court below, judgment was rendered in favor of the banking company, from which the plaintiff appeals. The facts are correctly stated in the appellant's brief, and the statement will be taken from that: “The pleadings show that on February 11, 1881, the Union Pacific Railway Company sold to Christian Needham the N. 1/2 N. W. 1/4 section 19, township 13, range 5, in Hamilton county, Neb., on its usual terms,--one-tenth cash, balance on ten yearly deferred payments,--and as evidence of the sale, and its terms, made and delivered to the purchaser its sale contracts, numbers 46,868, 46,869 in the form usually employed by it. These contracts were assigned by Needham to one Putnam, and by Putnam to John W. Smith, mentioned in the pleadings. On August 27, 1885, Smith and wife mortgaged these lands, with other tracts, to Chauncey S. Dimick, for a large amount. The mortgage was immediately and properly recorded. Thereafter, on October 6, 1885, Smith and wife conveyed the same premises, by quitclaim deed, to the defendant banking company, which deed was also duly recorded. Three days later,--October 9, 1885,--Smith and wife assigned and delivered said Union Pacific Railway contracts of sale to the banking company. This assignment was approved by the railway company on October 14, 1885, and the bank has ever since retained possession of the contracts.” It is admitted in its answer that the banking company had actual knowledge of the Dimick mortgage, and that its rights under the deed and assignment were subsequent to the Dimick mortgage. After the maturity of his mortgage, Dimick commenced forclosure in the Hamilton county district court, making the banking company defendant. This cause was removed to the federal court, and was consolidated with other foreclosure cases affecting the same property. Under date of November 23, 1886, all the parties to these consolidated cases, including Dimick and the banking company, entered into a stipulation declaring the amounts due each, fixing their respective priorities and rights, and for a foreclosure of their several liens. On this stipulation, decree was rendered in the federal court on April 11, 1887. A copy of this stipulation, and also of the decree rendered thereunder, is attached to plaintiff's petition, and was introduced in evidence. Paragraph 2 of the stipulation declares the amount due Chauncey S. Dimick on his mortgage to be $3,771.45, with 10 per cent. interest from November 8, 1886. Paragraph 3 provides that Chauncey S. Dimick has a first and best lien on the land above described, and being the property in dispute in this action, and that he has subsequent liens on other tracts described in the stipulation. Paragraph 10 is in the following language: “That any surplus that may arise after the satisfaction of the liens above stated, with the costs, shall be paid into court, to await its further order in the premises, and that the Grand Island Banking Company shall have the...