Grand Island Sav. & Loan Ass'n v. Moore

• Decision Date: 15 May 1894
• Citation: 59 N.W. 115,40 Neb. 686
• Court: Nebraska Supreme Court
• Parties: GRAND ISLAND SAVINGS & LOAN ASS'N v. MOORE ET AL.

40 Neb. 686

59 N.W. 115

GRAND ISLAND SAVINGS & LOAN ASS'N

v.MOORE ET AL.

Supreme Court of Nebraska.

May 15, 1894.

Syllabus by the Court.

1. The transcript of a record filed in this court for the purpose of appeal imports absolute verity, and, in considering the appeal, must be treated as the sole and exclusive evidence of the facts.

2. It seems that, under a prayer for the foreclosure of a mortgage and for general relief, a personal judgment may be allowed for a deficiency.

3. Where the prayer is in such form and after confirmation of sale the plaintiff files a motion praying for a deficiency judgment, serving notice thereof upon the defendant, such motion will be treated as an amendment of the prayer of the petition.

4. A judgment for a deficiency may be rendered against one who purchased the mortgaged property after the mortgage was made, and, in his purchase, assumed and agreed to pay the mortgage debt. Cooper v. Foss, 19 N. W. 506, 15 Neb. 515, followed.

5. A mortgagee will not be precluded from obtaining a judgment for a deficiency upon the ground that he knowingly procured too great an amount to be found due upon the mortgage, when, in the proceedings for the deficiency judgment, the finding of the amount due in the decree is mutually disregarded, and a new accounting had.

6. In the absence of special equities, a pledgee of personal property will not be required to exhaust his security before enforcing his personal remedy upon the debt.

7. A note, and a mortgage securing it, made contemporaneously, are to be construed together. Therefore, where a note is payable on or before a date named, and the mortgage contains a provision that, in certain contingencies, prior to that date the mortgagee may elect to declare the whole amount due, held, that such provision in the mortgage authorized the mortgagee, upon the happening of such contingencies, to proceed, not only to foreclose the mortgage, but also to enforce the personal liability upon the note.

Appeal from district court, Hall county; Harrison, Judge.

Action by the Grand Island Savings & Loan Association against Juliette Moore, George H. Moore, Charles Wasmer, and Saturnina Wasmer. From a judgment for plaintiff, defendants appeal. Affirmed.Thummel & Platt, for appellants.

Abbott & Caldwell, for appellee.

IRVINE, C.

This is an appeal from a deficiency judgment rendered against the appellant Wasmer. The transcript is very incomplete, as to the proceedings prior to the motion for judgment. Counsel have stated many facts in the briefs, as to which the record is entirely silent. It appears that in November, 1890, the plaintiff began this action against Juliette Moore, George H. Moore, Charles Wasmer, and the wife of Wasmer, to foreclose a mortgage made by the Moores to the plaintiff. In addition to the usual averments, it was charged that Wasmer had purchased the mortgaged premises since the giving of the mortgage, and in his purchase thereof assumed, agreed to pay, and became responsible for the payment of, the mortgage debt. Neither the summons nor return, subsequent pleadings, or decree appear in the transcript. We must therefore presume that jurisdiction was acquired, and that the decree was of such a character as to warrant the subsequent proceedings. The transcript does contain an order of sale and return, an order of confirmation, and for a deed. Subsequently to the order of confirmation, the plaintiff filed a paper styled “Motion For Deficiency Judgment,” as follows: “Now comes the plaintiff, and calls attention to the fact that the decree and finding of the court, together with the officer's return, shows that there is still a large amount of the sum found due unpaid, after applying the entire proceeds of the sale of the mortgaged property, to wit, $1,137.58, with interest thereon at 10 per cent. from the 14th day of March, 1891, the date of said sale, which amount is still due to the plaintiff, and unpaid. Plaintiff therefore prays judgment and execution against the defendant Charles Wasmer for said sum, with interest and costs.” Thereafter, Wasmer filed a paper styled “An Answer,” reciting that he had been served with notice to show cause, if any, why judgment should not be rendered against him for the deficiency, and for such cause averring--First, that no proper petition was filed in the original action; second, that the petition did not pray for a deficiency judgment; third, that the petition did not state a cause of action against Wasmer; fourth, that there was a defect of parties defendant; fifth, that no service had been had upon the Moores; sixth, because the plaintiff made proof of more than was due, well knowing that Wasmer was entitled to a large credit, and the plaintiff holding in its possession stock in the plaintiff corporation as security for what remained due; seventh, that the proceeding was premature, and the note not due. The fourth and fifth of these objections may be dismissed with the statement that the record fails absolutely to show any facts upon which they could be based. We shall take up the other objections in their order, in connection with the arguments upon which they are founded:

1. The first objection is based upon the proposition that the petition in the case was not filed in the district court. It would be inferred from the briefs that the clerk neglected to place a filing mark upon the petition, but noted the filing upon the wrapper in which it was contained. The point is unimportant, however, because the record recites distinctly “that on the 8th day of November, 1890, there was filed in the office of the clerk of the district court of Hall county a petition in the words and figures following: * * *” The record is absolutely conclusive upon this point.

2. The second objection is based upon the failure of the petition to pray for a deficiency judgment. The prayer was “for a finding of the amount due on said claim, and for a decree of foreclosure, an order of sale of the said property to satisfy the said claim, and for such other and further relief as is just and equitable.” Whether a deficiency judgment can be allowed under a prayer for general relief is a question not free from doubt, and its solution is rendered more difficult, rather than aided, by such authorities as we have been able to find. It would seem that under the general rule that a prayer for general relief permits the allowance of any relief applicable to the case, and not inconsistent with the particular relief demanded, such a prayer would be sufficient to authorize the rendition of a judgment for the deficiency. The courts have, however, exhibited a tendency to depart from this general rule in such cases, but their decisions are largely based upon statutes more or less differing from those of this state. Counsel contend that the case of Brownlee v. Davidson, 28 Neb. 785, 45 N. W. 51, implies that no special prayer for a deficiency judgment is necessary. We cannot see, in that case, any such implication. On the contrary, it does appear, clearly, from that case, that at some stage of the proceedings the plaintiff must ask for a deficiency judgment before error can be predicated upon failure to allow it. This is the only authority cited in the briefs. We have, however, pursued the investigation somewhat further. In Giddings v. Barney, 31 Ohio St. 80, under a similar prayer, the court discussed a statute which it was claimed permitted a mortgagee in one action to foreclose his mortgage, and obtain a personal judgment upon the debt. It was held that the personal judgment could not be allowed under a prayer similar to that in the case under consideration, but the court disclaimed the intention to deny the power of awarding execution for a balance due after the property was exhausted. The inference is that such relief could be had. In Foote v. Sprague, 13 Kan. 155, the petition asked for a foreclosure and sale, and that execution should be issued for the balance. A personal judgment was rendered. The supreme court held that, where the prayer was no more defective than in that case, it might be amended at any time, and, upon petition in error, would be considered as amended. In Wisconsin the statute permits a...