Hadley v. Corey, 30620.

CourtSupreme Court of Nebraska
Citation288 N.W. 826,137 Neb. 204
Docket NumberNo. 30620.,30620.
PartiesHADLEY v. COREY ET AL.
Decision Date28 November 1939

137 Neb. 204
288 N.W. 826

HADLEY
v.
COREY ET AL.

No. 30620.

Supreme Court of Nebraska.

Nov. 28, 1939.


[288 N.W. 827]


Syllabus by the Court.

1. The owner of the equity of redemption, who executed the real estate mortgage thereon, and who thereafter continued to retain the title thereto, had authority to bind the mortgaged property by her unrecorded extension agreement in writing extending the maturity date of the indebtedness secured thereby. As to such mortgagor, a cause of action did not accrue thereon, nor the statute of limitations commence to run, until after the termination of the stipulated extension period.

2. “A demurrer to the petition is not, by the provisions of our code of practice, a proper part of the answer filed in a case, and should be disregarded.” Fidelity & Deposit Co. v. Parkinson, 68 Neb. 319, 94 N.W. 120.

3. “The sufficiency of a petition cannot be raised by incorporating a demurrer in the answer.” Peterson v. Wahlquist, 125 Neb. 247, 249 N.W. 678, 89 A.L.R. 747.

4. The defense of the statute of limitations, if not raised either by demurrer or answer, is waived.

5. “From the time of filing such notice (lis pendens) the pendency of such action shall be constructive notice to any purchaser or encumbrancer to be affected thereby, and every person whose conveyance or encumbrance is subsequently executed or subsequently recorded shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken in said action after the filing of such notice to the same extent as if he were made a party to the action.” Comp.St.1929, § 20-531.

6. “The purpose of the rule as to lis pendens is to prevent third persons, during the pendency of the litigation, from acquiring interests in land which would preclude the court from granting the relief sought.” Merrill v. Wright, 65 Neb. 794, 91 N.W. 697, 101 Am.St.Rep. 645.

7. If a purchaser or encumbrancer, subject to lis pendens, becomes a party to the action, he may be entitled to question the plaintiff's right to recover in the same manner as the original defendant, but is entitled to no greater rights of defense than possessed by the person to whose interests he succeeded.


Appeal from District Court, McPherson County; Nisley, Judge.

Suit in equity by O. J. Hadley against Libbie S. Corey, unmarried, and others, to secure the foreclosure of certain mortgage on realty. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed.

Hoagland, Carr & Hoagland, of North Platte, for appellants.

J. C. Hollman, of North Platte, for appellee.


Heard before SIMMONS, C. J., and EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

EBERLY, Justice.

This is a suit in equity prosecuted in the district court for McPherson county by plaintiff, O. J. Hadley, against defendants Libbie S. Corey, unmarried, “John Doe and Mary Doe, real true names unknown,” to secure the foreclosure of a certain real estate mortgage upon certain real estate situated in that county, which, at the time this mortgage was executed, was owned by Libbie S. Corey, named in this proceeding as mortgagor and defendant. It is pleaded in the petition that this mortgage bears date of May 1, 1922, and was given to secure the payment of a certain “real estate first mortgage coupon bond” of $1,200 bearing even date therewith, due and payable, with interest, five years after date; that the real

[288 N.W. 828]

estate mortgage was duly recorded on June 8, 1922, in book 5, at page 516, of the real estate mortgages of McPherson county; that on March 1, 1927, Libbie S. Corey, mortgagor, entered into an extension agreement in writing with the then owner of the above described note and mortgage, by the terms of which Libbie S. Corey covenanted (in part) that, “In consideration of the extension of the time for the payment thereof (the $1,200 coupon bond secured by the real estate mortgage aforesaid), the undersigned hereby * * * agrees with Clarence F. Kenyon, the present owner of the said note or bond and mortgage deed, or his heirs, administrators, executors, successors or assigns, to pay the principal sum due on said note or bond on the first day of May, 1932, and also the interest thereon at the rate of five per cent. per annum, payable semiannually, during the said term of extension, according to the tenor and effect of the ten extension coupons hereto attached; * * * And all conditions, covenants and agreements contained in said note or bond or mortgage deed securing the same are hereby continued in force and ratified, except as to the time of payment, and except that the place of payment and rate of interest shall be as stated herein, and this agreement shall bear the same relation to the original note and mortgage and be construed therewith as though its terms had been originally a part thereof.”

It also appears that this extension agreement, together with ten extension coupons attached, had been accepted and received by Clarence F. Kenyon, and that all such extension coupons had been duly paid excepting the tenth; that the default alleged consisted of the failure to pay the tenth coupon note in the sum of $30, and the sum of $1,200 due upon the principal note thus extended, together with interest on each instrument from May 1, 1932, as therein provided, together with the defaults by defendants in payment of taxes assessed on the mortgaged premises, which it was charged constituted a breach of the conditions of said mortgage extended, and entitled the plaintiff to a decree of foreclosure and sale as prayed. The petition also alleges that this extension agreement was filed for record in the office of the county recorder of McPherson county, Nebraska, on August 25, 1937, at 9 o'clock a. m., in book 7, at page 465 of the real estate mortgage records of said county, and that on the same day the original mortgage was rerecorded in book 7, at page 463 of the real estate mortgage records of said county. Mesne assignments in writing are properly pleaded, by the terms of which the plaintiff herein became vested with all the rights and interest originally granted by the terms of the original mortgage and all the rights created by the extension in writing hereinbefore referred to. True copies of the original mortgage and coupon bond secured by the same, the written extension thereof, and the several mesne assignments thereof, are all attached to and constitute a part of the petition filed in this case. In addition, it is alleged in this petition that the defendant Libbie S. Corey, by the terms of said real estate mortgage, as party of the first part, covenanted and agreed with the mortgagee, as party of the second part, to pay all taxes assessed upon the mortgaged premises, including assessment for water rights, “and all taxes or assessments of any nature whatever levied upon this mortgage, or the debt secured by this mortgage, or against said party of the second part, or the owner of said bond, on account of this indebtedness, before the same becomes delinquent.” By the terms of said mortgage it was further agreed by said Libbie S. Corey that the mortgagee therein named, as party of the second part, its successors or assigns, “may pay said taxes and assessments for water rights, redeem said premises from tax sale * * * on failure of the party of the first part to do so, and all moneys so advanced, with interest at the rate of ten per cent. per annum thereon, shall be repaid by said party of the first part and be secured by this indenture.”

The petition also alleged “that said defendants have also failed and neglected to pay the taxes regularly and lawfully assessed against said mortgaged premises for the years 1931, 1932, 1933, 1934, 1935 and 1936, and have suffered the same to become delinquent and the county treasurer of said McPherson county, Nebraska, regularly and lawfully advertised said premises for sale for said taxes and sold the same according to law, and on the 4th day of November 1937, plaintiff herein was forced to redeem said mortgaged premises from said tax sale for the above mentioned taxes and in order to do so was required to pay to said county treasurer of McPherson county, Nebraska, the sum of $183.15;” and in effect that there is due plaintiff upon the taxes thus paid, satisfied and discharged the sum of $183.15 with interest at 10 per cent. per annum from November

[288 N.W. 829]

4, 1937, which is a lien on the mortgaged premises to be satisfied by the foreclosure and sale thereof.

It also appears that on December 18, 1937, at 4 o'clock p. m., there was filed in the office of the county clerk of McPherson county a lis pendens in due form, giving notice of the pendency of...

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7 cases
  • Schwank v. Platte County
    • United States
    • Supreme Court of Nebraska
    • January 27, 1950
    ......729, 235 N.W. 341; Peterson v. Wahlquist, 125 Neb. 247, 249 N.W. 678, 89 A.L.R. 747; Hadley v. Corey, 137 Neb. 204, 288 N.W. 826.         Further, as applicable here, this court only ......
  • Stacey v. Pantano
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    • Supreme Court of Nebraska
    • October 30, 1964
    ...... Bohmont v. Moore, 141 Neb. 91, 2 N.W.2d 599; Hadley v. Corey, 137 Neb. 204, 288 N.W. 826; Latenser v. Misner, 56 ......
  • Hadley v. Corey
    • United States
    • Supreme Court of Nebraska
    • November 28, 1939
    ... 288 N.W. 826 137 Neb. 204 HADLEY v. COREY ET AL. No. 30620. Supreme Court of Nebraska. November 28, 1939 . [288 N.W. 827] . .          . Syllabus by the Court. . . .          1. The. owner of the equity of redemption, who executed the real. estate mortgage thereon, and who thereafter continued to. retain the title ......
  • Vielehr v. Malone
    • United States
    • Supreme Court of Nebraska
    • March 26, 1954
    ...... It must be pleaded either by answer or demurrer or it will be considered as waived. Hadley v. Corey, 137 Neb. 204, 288 N.W. 826; Kissick Const. Co. v. First Nat. Bank of Wahoo, D.C., 46 ......
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