Durland v. Durland

• Decision Date: 20 November 1901
• Docket Number: 10,350
• Citation: 87 N.W. 1048,62 Neb. 813
• Parties: A. E. DURLAND, APPELLEE, v. M. C. DURLAND ET AL., IMPLEADED WITH HARRY v. TEMPLE, APPELLANT
• Court: Nebraska Supreme Court

87 N.W. 1048

62 Neb. 813

A. E. DURLAND, APPELLEE, v. M. C. DURLAND ET AL., IMPLEADED WITH HARRY v. TEMPLE, APPELLANT

No. 10,350

Supreme Court of Nebraska

November 20, 1901

APPEAL from the district court for Dawson county. Heard below before SULLIVAN, J. Affirmed.

AFFIRMED.

E. A Cook, for appellant.

Warrington & Stewart, contra.

OPINION

NORVAL, C. J.

This is an appeal by defendants from a decree foreclosing a real estate mortgage. The sole ground urged for a reversal is that the petition fails to state a cause of action. The petition alleges the execution and delivery to plaintiff by defendants of the promissory note in the sum of $ 1,800, dated July 19 1893, due one year thereafter with interest at eight per cent. per annum (a copy of which note is set out in the pleading); that the defendants, to secure said note, executed and delivered to plaintiff their certain mortgage deed on the real estate therein described; that said mortgage contained the following condition: "Provided always, and these presents are upon the express condition, that if the said M. C. Durland, and Fanny B. Durland, their heirs, executors or administrators, shall pay or cause to be paid to the said A. E. Durland, his heirs, executors, administrators, or assigns, the sum of eighteen hundred dollars on the 19th day of July, 1894, with the interest thereon at the rate of eight per cent. per annum from this date according to the tenor and effect of the one promissory note of said M. C. Durland and Fanny B. Durland, bearing even date with these presents, then these presents to be void, otherwise to be and remain in full force." The petition alleges the filing and recording of the mortgage; avers that the defendant Temple has an interest in the land by virtue of a certain deed, which is subject to the mortgage sought to be foreclosed. The fourth paragraph of the petition is as follows: "No proceedings at law have been commenced or maintained for the collection of the debt secured by the said mortgagor, nor any part thereof, nor has said debt, nor any part thereof, been paid, and there is due thereon from the said M. C. Durland and Fanny B. Durland to the plaintiff the sum of $ 1,800 with the interest on said sum at eight per cent. per annum, payable annually, from the 19th day of July, 1893."

It is argued that the petition is fatally defective in that a breach of the condition of the mortgage is not averred. In this...