Goos v. Goos
| Decision Date | 22 December 1898 |
| Docket Number | 8532 |
| Citation | 77 N.W. 687,57 Neb. 294 |
| Parties | ANNA GOOS, APPELLEE, v. HANS GOOS ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Cass county. Heard below before CHAPMAN, J. Reversed.
REVERSED AND REMANDED.
Byron Clark and C. A. Rawls, for appellants.
Matthew Gering and A. N. Sullivan, contra.
The main object of this action was to foreclose a mortgage, but the complications are such that its precise nature may be best disclosed by a short analysis of the pleadings. The plaintiff Anna Goos alleged that in 1891 she became the owner of certain described land in Cass county. May 3, 1893, she sold and conveyed the land to Hans Goos for the sum of $ 8,000. The consideration was arranged by his paying $ 1,000, assuming an existing mortgage of $ 1,000, and executing his notes for $ 6,000, secured by mortgage on the land. It is charged that this mortgage plaintiff, after its delivery, committed to the custody of the mortgagee for the purpose of having it recorded, and that he failed to cause it to be recorded, a fact not known to plaintiff until the autumn of 1894. It is next alleged that October 20, 1894 Hans Goos and William Weber conspiring to defraud plaintiff, Hans executed to Weber a mortgage for $ 1,000, which Weber, November 15, 1894, assigned to the Krug Brewing Company, the mortgage and assignment being both recorded. It is charged that the brewing company knew of plaintiff's mortgage and of all the facts. It is further charged that thereafter Hans Goos, contriving to induce plaintiff to assume the Weber mortgage, fraudulently induced her to accept a reconveyance of the land, together with Hans' notes for $ 250. The prayer was for a rescission of the last contract and a foreclosure of the plaintiff's mortgage to the exclusion of that to Weber. The answers of the several defendants deny all charges of fraud, allege a consideration for the Weber mortgage and its assignment, and charge that as a part of the contract whereby the land was reconveyed to plaintiff, and in consideration thereof, and of Hans' notes for $ 250, plaintiff assumed and agreed to pay the Weber mortgage. The reply reiterates the charge that the last contract was obtained by fraud. The district court found that Hans fraudulently neglected to file plaintiff's mortgage for record; that it created a vendor's lien; that the Weber mortgage was executed to secure a pre-existing debt and future advances, with the intention on Hans' part to defraud plaintiff; that Weber knew of plaintiff's mortgage, but that the brewing company did not; that the assignment to the latter was to secure a pre-existing debt of Weber; that the settlement, whereby the land was reconveyed and the mortgage assumed, was without consideration and fraudulent. A foreclosure of both mortgages was decreed, the plaintiff to have priority.
Many interesting questions are presented by the record and ably argued in the briefs; but the conclusion reached on one branch of the case renders unnecessary the consideration of other phases. It is now the well settled law of this state that where one makes a promise to another for the benefit of a third person, the third person may enforce it, although not a party to the consideration. (Morrill v. Skinner, 57 Neb. 164, 77 N.W. 375, and cases there cited.) This rule has several times been applied to cases where one accepts a conveyance of land, and as part of the consideration agrees to pay an existing incumbrance thereon. The mortgagee may enforce the promise. (Rockwell v. Blair Savings Bank, 31 Neb. 128, 47 N.W. 641; Cooper v. Foss, 15 Neb. 515, 19 N.W. 506; Reynolds v. Dietz, 39 Neb. 180, 58 N.W. 89; Meehan v. First Nat. Bank of Fairfield, 44 Neb. 213, 62 N.W. 490.) Even where there has been no agreement to assume and pay the debt, a purchase wherein an apparent lien has been recognized as valid, and allowed for in fixing the price, has been held to estop the purchase from denying its validity. (Koch v. Losch, 31 Neb. 625, 48 N.W. 471.)
It follows that if the contract whereby the land was reconveyed was not open to rescission for fraud, it constituted a binding obligation upon the plaintiff to discharge the Weber mortgage, and it is immaterial whether, before that agreement, that mortgage was senior or junior to the plaintiff's. The finding that there was no...
To continue reading
Request your trial