Henry v. Henry
| Decision Date | 03 May 1905 |
| Docket Number | 13,769 |
| Citation | 103 N.W. 441,73 Neb. 746 |
| Parties | A. HENRY ET AL., APPELLANTS, v. MARTHA E. HENRY ET AL., APPELLEES. [*] |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dawson county: CHARLES L GUTTERSON, JUDGE. Reversed with directions.
Reversed and remanded, with instructions.
E. C and H. V. Calkins, for appellant Colton.
H. M Sullivan and Warrington & Stewart, for appellants Henry and Loibl.
E. A. Cook, George W. Fox and John Linderman, contra.
AMES, C. LETTON and OLDHAM, CC., concur.
In 1887 Samuel Gayman died intestate in Dawson county, in this state, where he owned two tracts of land, which for the sake of brevity will be called section four and section twelve, each tract being 160 acres in extent. Section four was his homestead, occupied as such by himself and family at the time of his death. At that time both tracts were incumbered by separate mortgages, the homestead for $ 230 and section twelve for $ 600. In March, 1887, shortly after her husband's death, the widow was appointed administratrix of his estate, and also as guardian of the children of the marriage, all of whom were minors. Five years afterwards, in March, 1892, the widow, assuming to act as administratrix, executed two new mortgages on section twelve in the aggregate for $ 330, and with the proceeds paid off the mortgage on the homestead; but these mortgages were executed without authority of law, and are admitted by counsel to have been void. The $ 600 mortgage existing on section twelve at the time of the death of the husband seems to have been previously discharged in some manner not disclosed by the record. In 1896 she executed, as administratrix and guardian, two additional mortgages aggregating $ 1,000 in amount and each of them covering both tracts. It is admitted by counsel that these instruments were also unauthorized and void. With the proceeds she paid off her own void mortgage on section twelve, and accumulated taxes to the amount of $ 281.56. The residue of the money appears to have been expended in the purchase of farm machinery and in carrying on the business of agriculture. In 1902 the children, having attained their majority, executed jointly to the widow and her bondsmen a release from liability on account of her conduct of her office as administratrix, and she and they were accordingly discharged by order of the county court. At about the same time, or shortly afterwards, all the heirs except the plaintiffs in this action, A. Henry and Sarah Loibl, executed conveyances of their undivided interests in the lands to the two latter. At the same time the widow also conveyed her estates in the lands to the plaintiffs. This action was brought for the purpose of removing the two mortgages last executed as being clouds upon the titles of the plaintiffs. The trial court granted the prayer of the petition, except as to the dower and homestead estate of the widow, upon the latter of which the mortgages were adjudged to be liens in the sum of $ 1,683 for principal and interest, but denying a decree of foreclosure and sale because of insufficiency of the prayer to the answer and cross-petition. Both parties appealed.
The mortgagee rests his case upon two contentions. The first is that he is entitled to be subrogated to the mortgage debt on the homestead that existed at the date of the death of the testator. But his debt was not paid with the proceeds of his mortgage, but was discharged four years previously to its execution with money derived from the void prior mortgage given to another person on section twelve. This prior mortgagee's equity, if he had one, which we do not decide, was extinguished when his demand was paid. Counsel has cited to us neither principle nor authority that warrants us in thinking that it was kept alive, or can be revived ten years after its satisfaction, to serve as an equitable consideration for his own instrument. The principle cited by counsel from Schlicker v. Hemenway, 52 Am St. Rep. (Cal.) 116, 128, that one who has furnished money to an executor or administratrix for the benefit of an estate may, in certain circumstances, be subrogated to a right of the latter to reimbursement, is without applicability to this case. What he is seeking for his client is not subrogation to any right, real or supposed, of the administratrix, who clearly has none, but to that of her prior mortgagee whom she has long ago fully paid off and satisfied. It is not seriously contended, and we suppose will not be so, that any lien or right of subrogation was...
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