France v. Bell
Decision Date | 15 June 1897 |
Docket Number | 7206 |
Citation | 71 N.W. 984,52 Neb. 57 |
Parties | GEORGE B. FRANCE, APPELLANT, v. JOHN BELL ET AL., APPELLEES |
Court | Nebraska Supreme Court |
APPEAL from the district court of York county. Heard below before BATES, J. Affirmed.
AFFIRMED.
Harlan & Taylor and George B. France, for appellant.
F. C Power, contra.
This action was instituted in the district court of York county to foreclose a mortgage on lot numbered 2, in block numbered 25 in the village of York, York county, Nebraska, which had been given to secure to appellant the payment of a promissory note in the principal sum of $ 100. In the answer it was stated:
It was further pleaded in the answer that on or about the date of the mortgage in suit the son of appellee was held to answer to a criminal charge in the district court of York county, and desired to give a recognizance for his appearance before said court on a certain day, and it was represented to appellee by the attorneys, of whom appellant was one, who had been employed to defend her son, that a note in the sum of $ 500 and a mortgage on her real estate must be delivered to the parties to secure them in signing the recognizance as sureties; that she agreed to and did comply with this demand; that about the time of the execution of the note and mortgage she was about sixty-five years old, her eyesight was poor, and she did not have her spectacles, and could not or did not read the papers then signed, but was told that it was a note in the sum of $ 500, and the mortgage to secure the same, and nothing other, further or different, and that if the $ 100 note was then signed and included in the mortgage it was without her knowledge and consent, and fraudulently procured to be done; that the case in which the recognizance was given had been disposed of and ended, and she had become entitled to have the mortgage in suit canceled and annulled, for which, as relief, she prayed. The reply, to the extent it referred in direct terms to the portion of the answer in which the mortgaged property was described as the home of the appellee, was as follows: "The defendant admits that the said Amanda Bell, at the time of the execution of the said mortgage deed, and ever since said time, was and has been residing upon the premises described in the petition and in said mortgage deed, and that said premises at that time was and have been of less value than $ 2,000, and are of the value of $ 500 or $ 600 and that the same consists of one lot within the corporate limits of New York, and the same is now a part of the city of York, all in York county, Nebraska, and that the said lot has a small dwelling thereon." There was also stated in the reply that the mortgage had been given to secure the parties in signing the bail bond of appellee's son, and further, that the $ 100 note evidenced the amount of the fee which was to be paid the attorneys in defense of appellee's son, and that the same was included in the mortgage with the full knowledge and agreement of the appellee. There was also a general denial of all matters alleged in the answer not expressly admitted. There was a hearing, the following being a copy of the journal entry thereat:
It is claimed by appellee that inasmuch as the trial court continued and retained the controversy between the parties in regard to the note, that the decree by which the mortgage was canceled and annulled was not appealable. In section 675 of the Code of Civil Procedure it is provided: "That in all actions in equity either party may appeal from the judgment or decree rendered or final order made by the district court to the supreme court."...
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