Hoagland v. Green

Decision Date03 March 1898
Docket Number7870
Citation74 N.W. 424,54 Neb. 164
CourtNebraska Supreme Court

APPEAL from the district court of Douglas county. Heard below before AMBROSE, J. Reversed.


Warren Switzler, for appellants.

G. W Shields, F. C. O'Hollaren, and J. J. O'Connor contra.



This was a proceeding in the nature of a creditors' bill to subject certain lots in the city of Omaha to the payment of judgments owned by the appellants against Joseph C. Green. The district court found for the defendants and dismissed the case. The plaintiffs appeal.

In 1891 Hoagland and French obtained a decree foreclosing mortgages on other property of Green. In August, 1892, the mortgaged premises were sold under the decree, leaving a small deficiency on Hoagland's claim and the whole of French's unsatisfied. The September term of the district court opened September 17, and at that term, on October 1, the sale was confirmed. October 8 both Hoagland and French moved for deficiency judgments, which were rendered November 17, still at the September term of court. The French judgment was assigned to the appellant Switzler. At the beginning of the term there was a mortgage on the land in controversy in favor of the Omaha Savings Bank. Subsequently, but before the deficiency judgments were rendered, Green and wife executed three mortgages on the land in controversy, in favor of the Globe Loan & Trust Company. The loan and trust company paid the savings bank's mortgage and a tax lien on the property out of the loan to secure which its mortgages were made, and paid the remainder of the loan to Green. After these mortgages were made and recorded, but before the deficiency judgments were rendered, Joseph C. Green conveyed the land to George H. Green. The questions presented are whether the judgments are liens binding upon George H. Green, and if so, whether they or the loan and trust company's mortgages have priority.

It is argued that the mortgages were delivered before the term of court opened at which the judgments were rendered and that they are therefore, in any view of the law, superior to the judgments. The facts, as established by uncontradicted evidence, are that arrangements had been made by Green with the loan and trust company for the loan early in September. September 16, the day before the term of court opened, Green came to the office of the company, the mortgages were there drawn, Green signed them and acknowledged them. Several days later Mrs. Green came to the company's office, signed and acknowledged the mortgages, and the notary who took both acknowledgments then certified thereto, dating the certificate as of the day of the wife's acknowledgment. No money was paid by the company until a still later day. From the time of the execution by Green the company retained possession of the instruments. Were the circumstances different the acts of Green in signing and acknowledging and leaving the instruments in the possession of the mortgagee might indicate a delivery on his part on September 16; but when it is considered that the mortgages were drawn by the mortgagee at its office, that the signing and acknowledging both took place there, that the certificates of Green's acknowledgment were not then made out, but evidently purposely withheld until such time as Green's wife might acknowledge, and that no money was paid out until after the latter event occurred, it becomes absolutely certain that the instruments were not deemed complete at the former time, and that they were not intended to then take effect. The bare manual possession by the mortgagee in the interval ceases to be significant. The delivery could not have taken place prior to September 27, when the wife executed the instruments. Section 477 of the Code of Civil Procedure provides "The lands and tenements of the debtor within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered; but judgments by confession, and judgments rendered at the same term at which the action is commenced, shall bind such lands only from the day on which such judgments are rendered. All other lands, as well as goods and chattels of the debtor, shall be bound from the time they shall be seized in execution." After a thorough consideration and exhaustive discussion of the question it was held that where a mortgage is executed and recorded during the term, but before the rendition of such a judgment as is rendered at a term subsequent to that at which the action was commenced and not on confession, the lien of the judgment is superior to the mortgage. (Norfolk State Bank v. Murphy, 40 Neb. 735, 59 N.W. 706. See also Ocobock v. Baker, 52 Neb. 447, 72 N.W. 582.) If the judgments here in question were ordinary judgments in personal actions, there could, therefore, be no doubt as to their priority, both as against the mortgages and the rights of George H. Green. But the argument is that the rule applies only by virtue of a legal fiction whereby judgments are deemed to have been rendered at the first day of the term, and that this fiction cannot apply where the case was not then in a situation that judgment might...

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