Hayden v. Huff

• Decision Date: 18 October 1900
• Docket Number: 9,186
• Citation: 83 N.W. 920,60 Neb. 625
• Parties: KENT K. HAYDEN, APPELLANT, v. EDWARD T. HUFF ET AL. APPELLEES
• Court: Nebraska Supreme Court

83 N.W. 920

60 Neb. 625

KENT K. HAYDEN, APPELLANT, v. EDWARD T. HUFF ET AL. APPELLEES

No. 9,186

Supreme Court of Nebraska

October 18, 1900

APPEAL from the district court of Lancaster county. Heard below before HOLMES, J. Affirmed.

AFFIRMED.

Cobb & Harvey, for appellant:

It is well settled that the doctrine applicable to voluntary payments has no application where the payment is made to redeem one's land from a mortgage or incumbrance. Rardin v. Walpole, 38 Ind. 148; Newell v Hurlburt, 2 Vt. 351; Platt v. Squire, 5 Cush. [Mass.], 551; Snowden v. Dunlavey, 11 Pa. St. 522.

A. G Wolfenbarger, T. F. H. Williams, A. S. Tibbets, James E Philpott and Lambertson & Hall, contra.

OPINION

NORVAL, C. J.

On April 4, 1892. Kent K. Hayden, plaintiff and appellant, purchased of Edward T. Huff, one of the defendants, lots 3 and 4, block 28, in South Lincoln, for the sum of $ 2,200, subject to a mortgage thereon of $ 1,000, executed by said Huff and wife to the Union Savings Bank, which was a subsisting lien upon said real estate. The title to the lots at the time of the purchase stood in the name of C. U. Crandall, to whom Huff had conveyed the property on October 26, 1891. Crandall and wife, at the request of Huff, executed a deed to the plaintiff. Huff represented to him before the sale that the lots were free and clear of all liens and incumbrances, except said mortgage and a certain judgment in favor of the Nebraska Savings Bank, and produced an abstract of title to the property showing the facts so to be. The judgment Huff procured to be released as a lien against the lots, and plaintiff, relying upon said representations of Huff and the abstract of title, paid the consideration for the lots, and subsequently, on September 28, 1892, paid off the mortgage to the Union Savings Bank, and the same was thereafter released and discharged of record. Afterwards plaintiff ascertained for the first time that in December, 1891, and during the September, 1891, term of the district court of Lancaster county, three judgments were obtained against said Huff and others, which were liens upon said lots, one in favor of the defendant, Alice A. Minick, for the sum of $ 621.35, besides costs, and the other two in favor of the Lincoln Savings Bank & Safe Deposit Company and George F. Wolfe, respectively. The several actions in which said judgments were obtained having been commenced prior to the September term of court, said judgments were liens upon said lots from September 21, 1891, the first day of said term, although the deed from Huff to Crandall was made prior to the rendition of the judgments, but subsequent to the first day of said term of court. Norfolk State Bank v. Murphy, 40 Neb. 735, 59 N.W. 706; Ocobock v. Baker, 52 Neb. 447, 72 N.W. 582. In July, 1895, an execution was issued on the Minick judgment, which was levied upon the lots in question, and the property was sold under the writ to her. This suit was afterwards instituted by Hayden to revive and reinstate the mortgage given to the Union Savings Bank, which mortgage had been paid, canceled and discharged of record; and the petitioner prayed that he be subrogated to the rights of the mortgagee. Upon the trial the court found the issues against the plaintiff, and dismissed the action. Hayden appeals.

The facts do not disclose a proper case for the application of the doctrine of subrogation, since plaintiffs' loss is attributable to his own laches. Had he been...