Herdman v. Marshall

• Decision Date: 11 March 1885
• Citation: 22 N.W. 690,17 Neb. 252
• Parties: HERDMAN v. MARSHALL AND OTHERS.
• Court: Nebraska Supreme Court

17 Neb. 252

22 N.W. 690

HERDMAN

v.MARSHALL AND OTHERS.

Supreme Court of Nebraska.

Filed March 11, 1885.

Appeal from Johnson county.

Babcock & Davidson, for plaintiff.

Harwood, Ames & Kelly, for defendants.

REESE, J.

The plaintiff and appellee filed her petition in the district court of Johnson county, on the sixteenth day of January, 1882, by which she sought the foreclosure of a mortgage on certain real estate, executed to her by E. Collingwood, by W. Wames, his attorney in fact, on the sixteenth day of January, 1874, for the purpose of securing the payment of a promissory note of the said Collingwood, executed of that date, in his name, by said attorney in fact, for the sum of $3,000, due and payable on the sixteenth day of January, 1877. The pleadings in the case are quite voluminous, but in order to a full understanding of the case it seems necessary that they be substantially given.

The petition states substantially that on the said sixteenth day of January, 1874, the defendant Collingwood, being indebted to the plaintiff in the sum of $3,000, executed to him, under the name of Nellie W. Amos, the note and mortgage declared on, and which are properly set out in the petition. It is alleged that W. W. Amos, the attorney in fact, was duly authorized to execute the note and mortgage, by a power of attorney properly executed and recorded, and that the mortgage was duly recorded in the mortgage records of Johnson county, and that the same was a valid and subsisting lien upon the real estate described therein; that the debt was due and unpaid, no payments having been made thereon; and that no proceedings had been had at law to collect the debt secured by the mortgage. She then avers that the other defendants, naming them, each claim some interest in, or lien upon, the mortgaged premises, the true nature of which is unknown, but inferior and subsequent to her mortgage. She asks that they be made defendants, and her mortgage foreclosed against them as well as against Collingwood.

The defendants, excepting William S. Amos and E. Collingwood, answer jointly, alleging in substance that the legal title to the mortgaged premises is in William S. Amos, the father of plaintiff, and the pretended defendant Edward Collingwood in truth and fact is the said William S. Amos; the name Collingwood being another and assumed name of said Amos, and that the names “William W. Amos” and “Nellie Wames, attorney in fact,” are assumed names of the defendant William S. Amos. That the said William S. Amos, alias William Wames, alias Edward Collingwood, in the spring and summer of the year 1870, and previously thereto, resided in the city of St. Louis, and was engaged in business therein as a dealer in lumber, shingles, and building material, under the style and name of W. S. Amos & Company, and under said style and name became largely indebted to the defendants severally, the amounts of which debts are alleged in the answer. It is alleged that William S. Amos was the sole and only proprietor of said business, and that the debts contracted by said William S. Amos and Company were the debts of William S. Amos solely. That immediately after contracting the said indebtedness, in the month of November, 1870, the said William S. Amos, for the purpose of defrauding them and preventing them from collecting their claims against him, secretly and clandestinely disposed of and converted his property into money, and in the night-time absconded and ran away from his place of business, and from the said city of St. Louis, and did fraudulently conceal himself in Nebraska under the assumed names of William Wames, alias Edward Collingwood, and so continued to conceal himself until the month of July, 1877, when he was accidentally discovered by one of the answering defendants. That in the year 1872 he, with his own means, purchased and paid for the real estate in question, and, for the purpose of concealing it from his creditors, caused the title to be made and to appear of record in the name of Edward Collingwood; and that on and prior to the sixteenth day of January, 1874,--the date of the mortgage declared on by plaintiff,--and also up to the time of filing the answer, the said William S. Amos was the owner in fee-simple, absolutely free from incumbrance, of said land, except as to the rights of said defendants, notwithstanding it appeared upon the county records in the name of Edward Collingwood.

It is also alleged that about the sixteenth day of January, 1874, said William S. Amos conspired and confederated with the plaintiff, who then assumed and was known by the name of Nellie Wames, but whose real name was Helen Amos, and to carry out his fraudulent purpose did, by the assumed name of E. Collingwood, (the real name of said Collingwood being William S. Amos,) by William Wames, attorney, in fact (that being another of the assumed names of said Amos,) without any consideration from plaintiff, Nellie Wames, or from any other person, assume and pretend to execute and deliver to said Nellie Wames the mortgage upon which the suit is based, but that the said Amos was not indebted to Nellie Wames, plaintiff, in any sum whatever; that said mortgage was never delivered to said Nellie Wames by said Amos, and never became a lien upon the property as against any person, and that as against the defendant it is wholly void. It is also alleged that the several claims and demands of the answering defendants have been reduced to judgments against the said Amos, and that they are still in force, unsatisfied and unpaid,--their dates, and names of the courts in which they were rendered, being set out at length; that executions have been issued on each of said judgments, but all have been returned unsatisfied for want of property on which to levy; that aside from the land in dispute they know of no property of the said William S. Amos, but that all of his property is so concealed that it cannot be found. All interest of the plaintiff in the property is denied, and it is sought to have the mortgage canceled and adjudged to be void, and the land decreed to be the property of William S. Amos, and made subject to defendant's executions.

The reply of the plaintiff “denies each and every allegation in said answer contained, inconsistent with the statements in plaintiff's...