Federal Land Bank of Omaha v. Tuma
| Decision Date | 10 November 1927 |
| Docket Number | 24997 |
| Citation | 216 N.W. 186,116 Neb. 99 |
| Parties | FEDERAL LAND BANK OF OMAHA, APPELLEE, v. AGNES TUMA ET AL., APPELLEES; JOHN M. FOLDA, APPELLANT; STEPHEN TUMA ET AL., INTERVENERS, APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Colfax county: LOUIS LIGHTNER JUDGE. Reversed, with directions.
REVERSED.
W. B Sadilek and Dolezal, Spear, Mapes & Stevens, for appellant.
George W. Wertz, E. F. Dougherty, Byron B. Oberst and John C Sprecher, contra.
This is an appeal by John M. Folda, one of the defendants, from the judgment and decree of the district court, finding his mortgage to be null and void and dismissing his cross-petition.
There is not so much dispute as to the facts as to the conclusions to be drawn therefrom. This situation calls for a rather complete and definite statement of the evidence.
Frank Tuma, a resident of Colfax county, died testate on or about October 21, 1917. He left surviving him his widow, Agnes Tuma, and the following children: Stephen Tuma, age 17, Emil Tuma, age 14, Emilie Tuma, age 11, Lumir Tuma, age 10, Lambert Tuma, age 6, and Paulina Tuma, age 4. The widow duly and formally elected under the statute not to take under the will. She administered the estate, and on November 11, 1918, a decree on her final account was entered, assigning to her a homestead interest in the premises, as well as a one-third interest, and assigning to each of the children a one-ninth interest in the land, described as the south half of the northwest quarter and the northeast quarter of the northwest quarter of section 29, township 20, in Colfax county, Nebraska. The decree further found that the widow had personally advanced $ 4,716.42 besides $ 24 additional court costs for the benefit of the estate and gave her a charge and lien upon said real estate on account thereof. The homestead was free from incumbrance at the time of Frank Tuma's death.
On September 9, 1918, Agnes Tuma executed a mortgage for $ 5,000 to Frank C. Hrabak, who was a cashier of the Colfax County Bank, located at Howells, Nebraska, on her undivided one-third interest in the 120 acres. There is testimony to the effect that this mortgage was transferred by Hrabak to the bank before the transactions which gave rise to this case; at any rate, the bank became the owner of it. November 30, 1917, Hrabak was appointed guardian of the six minor children and was such guardian until his resignation, tendered on July 16, 1920, was accepted on September 18, 1920, on which day Agnes Tuma was appointed as their guardian. On August 25, 1924, Agnes Tuma was discharged as guardian for the minors, and on the following day Stephen Tuma, who had then become of age, was appointed guardian of his five brothers and sisters. On March 2, 1920, Agnes Tuma gave a mortgage, recorded March 29, 1920, to E. Quesner, for $ 11,000, on her interest in the 120 acres described and covering also an adjoining 40 acres which she purchased on speculation. This mortgage was released September 25, 1920, the release being recorded October 4, 1920.
On September 13, 1920, by a mortgage recorded September 28, 1920, Agnes Tuma mortgaged for $ 19,000 to herself as guardian of the minors the 120 acres and the adjoining 40 acres; the records show a release of this mortgage March 1, 1923, the release being recorded five days later. On November 21, 1923, Agnes Tuma gave a mortgage for $ 1,161.65, which was recorded the next day, in favor of Joseph K. Suchan and Rudolph L. Suchan, covering the 120 acres.
The defendant, H. D. Myers, had a judgment lien against Mrs. Tuma in a justice court for $ 199.99, and the transcript was filed in the district court May 10, 1923.
In February, 1920, Agnes Tuma, with her son Stephen, went to John H. Roper, at Dodge, and employed him to procure a loan from the Federal Land Bank of Omaha, agreeing to pay him a commission of one per cent. of the amount of the loan secured. Roper was secretary and treasurer of the Surety National Farm Loan Association at Dodge, a corporation chartered by the Federal Farm Loan Board under the act of congress known as the Federal Farm Loan Act, passed July 17, 1917. An application was made by her for a loan. Shortly thereafter Mrs. Tuma was notified by Roper that a loan could not be made unless she acquired the entire fee title to the land. On consultation with her attorney, she brought an action for partition in the district court for Colfax county, on March 5, 1920. Frank C. Hrabak was appointed referee on April 26, 1920, and on April 30, 1920, filed his report showing that partition in kind among the widow and heirs could not be made. May 24, 1920, the court confirmed the report and directed a sale of the land. The referee sold the land to Agnes Tuma, on her bid of $ 250 an acre, for $ 30,000, which was the fair value of the land. Frank C. Hrabak, referee, filed his report of sale July 16, 1920, and his supplemental report on September 18, 1920, on which day the court confirmed the sale and directed the referee to execute a deed to the purchaser. The referee's supplemental report showed that the expenses of making the sale totaled $ 870.80; that he paid the equitable lien of Agnes Tuma, with interest from November 11, 1918, totaling $ 5,130.27; and that, after the payment of these items, there was left $ 23,998.93, to be divided as provided in the order determining shares, one-third, or $ 7,999.64, to the widow, and $ 2,666.55 to each of the children. The report stated that the referee filed receipts from the parties entitled thereto or from their guardian, and among the attached receipts were those from Agnes Tuma, receipting for her equitable lien and for her one-third interest, in the sums above named, and Frank C. Hrabak, guardian of the minors named, acknowledged that he had received from Frank C. Hrabak, referee, the sum of $ 15,999.30, in full of the minors' shares in the proceeds of the referee's sale. The referee conveyed the land sold to Agnes Tuma by deed dated September 13, 1920, and recorded September 16, 1920. On September 18, 1920, there was filed in the guardianship matter, in the county court, the receipt of Agnes Tuma, in favor of Frank C. Hrabak, retiring guardian, for the sum of $ 15,999.30, and acknowledging receipt from Hrabak, retiring guardian, of $ 1,891.21, "cash money and interest accumulated thereon which the minors received from the insurance of their father." The receipt also acknowledges "receipt of one note of Agnes Tuma for $ 2,091, made to Frank C. Hrabak, as guardian, on September 14, 1918, and bearing interest at 5 per cent. from date, being their money in the share of the personalty of the estate of Frank Tuma, deceased. In fact, the referee never received the purchase price in money or its statutory equivalent. On September 16, 1920, there was recorded the mortgage for $ 10,000 given by Agnes Tuma to the Federal Land Bank of Omaha on the 120 acres of land, to secure a note for $ 10,000, with interest at 5 1/2 per cent. per annum, payable semi-annually at the rate of $ 325 each January 1 and July 1 until July 1, 1954. On September 13, 1920, Agnes Tuma executed and delivered to John M. Folda a mortgage for $ 10,000, covering the home place and the additional 40 acres. This was recorded September 28, 1920. Also, on September 13, 1920, Frank C. Hrabak released his $ 5,000 mortgage, heretofore described, on the 120 acres, which release was recorded October 23, 1920.
The inception of the trouble reflected in this action was the purchase by Mrs. Tuma late in 1919 or early in 1920 of the 40 acres adjoining the Tuma farm. She contracted to pay $ 12,000 for it, paid $ 1,000 down and was to make settlement by March 1, 1920. To finance this she borrowed $ 11,000 temporarily from E. Quesner, on the mortgage heretofore referred to, and then, to help discharge the Quesner loan, she sought and secured the loan from the plaintiff. Out of this loan she did not receive the full $ 10,000 in money. She had to take $ 500 in shares of the Surety National Farm Loan Association and to pay the commission of $ 100, as well as other items of expense, so that she received less than $ 9,500 as the net proceeds of the mortgage. Ultimately she disposed of the 40 acres on a falling market at a considerable loss. Her troubles were further increased by the failure of the Lion Bonding Company, which was the surety on her guardian's bond. Her inability to give another bond led to her discharge as guardian as well as prevented any chance for the minors to recover any loss occasioned by her failure to handle their estate as her duty as guardian required.
The district court found and decreed as follows: That the Federal Land Bank of Omaha, plaintiff, by virtue of its mortgage, has a first lien for $ 10,508.28, which should be reduced by the cancelation of the par value of 100 shares of Mrs. Tuma of the par value of $ 5,000 in the Surety National Farm Loan Association and by the retirement of the equivalent number of shares at par by the plaintiff, so that the net amount of plaintiff's first lien is $ 10,008.28, to bear interest at 8 per cent. per annum from the date of the decree; that the defendants Joseph K. Suchan and Rudolph L. Suchan have a second mortgage lien on the premises, amounting to $ 1,299.10, with interest at 10 per cent. per annum; that H. D Myers has a judgment lien which is a third lien on the premises, but that Agnes Tuma is the head of a family and as such has a homestead interest in said premises, and that the judgment lien of said defendant Myers, amounting to $ 228, to bear 7 per cent. interest, is subject to the homestead right of Agnes Tuma; that the...
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