Hatch v. Ely
| Decision Date | 23 December 1936 |
| Docket Number | 29777 |
| Citation | 270 N.W. 480,131 Neb. 882 |
| Parties | NEVADA D. HATCH, APPELLEE AND CROSS-APPELLANT, v. THIRZA C. ELY ET AL., CROSS-APPELLEES: GEORGE D. BEYER, APPELLANT AND CROSS-APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Morrill county: J. LEONARD TEWELL, JUDGE. Reversed and dismissed.
Judgment reversed. Action dismissed.
Syllabus by the Court.
An action to foreclose a mortgage on real estate can be brought only within ten years after the cause of action accrues. Where the mortgage contains a clause accelerating the due date or maturity of a mortgage on the de fault in the payment of interest, and the mortgagee thereupon elects to declare the mortgage due under such option, the statute of limitations begins to run from the date of such election.
Appeal from District Court, Morrill County; Tewell, Judge.
Suit by Nevada D. Hatch against Thirza C. Ely and others, impleaded with George D. Beyers. From an adverse judgment, defendant Beyers appeals and plaintiff cross-appeals.
Judgment reversed and suit dismissed.
Neighbors & Coulter, for appellant.
Joseph B. Boe and Fisher & Fisher, contra.
Heard before GOSS, C. J., ROSE, EBERLY, DAY and PAINE, JJ., and CHAPPELL, District Judge.
This is an appeal from a decree of foreclosure.
The evidence discloses that on September 22, 1919, Moses P. Hatch and his wife, Nevada, sold 939.36 acres of land in Morrill county to Thirza C. Ely for $ 25,000. A warranty deed was made to the purchaser, who with her husband gave back a note and mortgage for $ 18,000 to the seller. The buyer was unable to pay either the taxes or the interest upon the note and mortgage, and Thirza C. Ely and her husband, Ray, met Moses P. Hatch and his son Martin in Bridgeport, Nebraska, on September 3, 1921, and, to settle the matter between the parties, Thirza C. Ely and husband reconveyed all of the same land by warranty deed to Moses P. Hatch in consideration of the surrender and settlement of the note and mortgage for $ 18,000. The Elys testify that the note and mortgage were surrendered when they reconveyed the premises, and that the mortgage was destroyed by them. However, it appears that the note was not destroyed.
Vinnie M. Johnson, the daughter of Nevada D. Hatch, plaintiff and appellee, testified that she lived with her mother on this land northwest of Angora from about April 8, 1926, to January, 1928, and that her mother's papers were in a box in her possession during that time. That on the 29th or 30th day of January, 1928, Sheriff E. L. Davis, in ejecting them off the place, took her mother's things and threw them out on the prairie, and she picked up this box which had been thrown out on the prairie, and found in it this old note, exhibit No. 2, for $ 18,000, but did not disclose this fact to her mother until some years later.
A son, Martin G. Hatch, testified that he did not personally return the note and mortgage to the Elys on September 3, 1921, in McDonald & Irwin's office when the Elys deeded back the property, and that he did not see his father give it back, but on cross-examination admitted that in an affidavit, signed before Ruth Burgess, a notary public, on May 24, 1933, he had made the statement that the deed of the Elys, conveying the property back to his father, was signed by the Elys before George W. Irwin in his presence, and that at the time his father, Moses P. Hatch, had in his possession the $ 18,000 note and the mortgage deed given to secure the same, and that Moses P. Hatch in his presence delivered up and turned over to the Elys the note and mortgage, but it appears that the mortgage was never released of record. After the Elys deeded the land back, the Hatches immediately moved to and took up their residence thereon, and lived on the same as a homestead for six or seven years, during which time Moses P. Hatch became indebted to the Nebraska State Bank of Bridgeport, which bank secured a judgment against him and levied upon this land and sold it at sheriff's sale, the bank bidding in the premises. Nevada D. Hatch intervened and had her homestead interest therein determined to be of the value of $ 2,000, and said amount was thereupon paid into court for her benefit. The Nebraska State Bank sold and conveyed the premises to James P. Spearman, who gave back a mortgage thereon to George D. Beyer, and upon default said Beyer foreclosed said mortgage and purchased the property at sheriff's sale, and since said time has owned and occupied the same. Nevada D. Hatch instituted several actions in the district court for Morrill county, Nebraska, and alleged in each of said actions that the premises involved in the case at bar were the property of her deceased husband, Moses P. Hatch, free and clear of all liens except her homestead interest therein of $ 2,000.
It was deemed necessary to set out these facts as leading up to the case at bar.
On May 12, 1933, Nevada D. Hatch brought a foreclosure suit against the Elys, George D. Beyer et al., and alleged that the $ 18,000...
To continue reading
Request your trial