Homan v. Hellman

• Decision Date: 26 October 1892
• Citation: 35 Neb. 414,53 N.W. 369
• Parties: HOMAN ET AL. v. HELLMAN.
• Court: Nebraska Supreme Court

35 Neb. 414

53 N.W. 369

HOMAN ET AL.

v.HELLMAN.

Supreme Court of Nebraska.

Oct. 26, 1892.

Syllabus by the Court.

1. An action was brought by a party out of possession to quiet and confirm his title to real estate. In his answer the defendant made the objection that the action would not lie, and the court sustained the objection; thereupon the court permitted the plaintiff, upon payment of all costs, to amend his petition to state a cause of action in ejectment. Held no error.

2. So long as the subject of the action remains substantially the same, an amendment may be permitted to adapt the relief to the facts relied upon for a recovery.

3. A decree foreclosing a mortgage upon real estate is a final judgment, upon which the parties to the suit may rely; and any change therein and modification thereof without lawful notice, particularly after the term at which it was rendered, is null and void.

Error to district court, Douglas county; HOPEWELL, Judge.

Action by Myer Hellman against Henry A. Homan and others to quiet title to certain land. Plaintiff was permitted to amend his petition so as to bring the action in ejectment. The court directed a verdict for plaintiff, and defendants bring error. Reversed.Hall & McCulloch, for plaintiffs in error.

H. D. Estabrook and Irvine & Clapp, for defendant in error.

MAXWELL, C. J.

In March, 1887, the defendant in error brought an action in the district court of Douglas county against the plaintiffs in error to remove a cloud and quiet the title to the N. W. 1/4 of the N. E. 1/4 of section 34, township 16 N., of range 13 E., in Douglas county. An amended answer was filed by the defendants below, in which they alleged that the plaintiff below was not in possession of the land, and therefore could not maintain an action to quiet title, and the court so held. The plaintiff below thereupon asked leave to amend his petition so as to bring the action in ejectment. This leave was granted upon the payment of all costs, and this is the first error complained of. There was no error in permitting the amendment. In McKeighan v. Hopkins, 14 Neb. 361, 15 N. W. Rep. 711, and the same case, 19 Neb. 33, 26 N. W. Rep. 614, an action was brought in ejectment, and an amendment permitted to make the action one to redeem. To the same effect, Gregory v. Bank, 16 Neb. 411, 20 N. W. Rep. 286. These cases were decided upon the theory that, so long as the action relates to the same thing, the form may be changed so as to adapt the relief to the facts proved. It is true that, under the common-law and chancery practice, such an amendment would not have been allowed, but, under the Code, so long as the identity of the subject of action remains substantially the same, the form of the remedy may be changed. Robinson v. Willoughby, 67 N. C. 84;Bullard v. Johnson, 65 N. C. 436;Roberts v. Swearingen, 8 Neb. 363, 1 N. W. Rep. 305;Caldwell v. Meshew, (Ark.) 13 S. W. Rep. 761;Barnes v. Insurance Co., (Iowa,) 39 N. W. Rep. 122;Esch v. Insurance Co., (Iowa,) 43 N. W. Rep. 229;Argersinger v. Levor, (Sup.) 7 N. Y. Supp. 923;Gourley v. Railway Co., 35 Mo. App. 87; Maxw. Code. Pl. 578.

2. It appears from the record that in August, 1857, an instrument purporting to be a deed of the Florence Land Company, “for the N. E. 1/4 of section No. 34, in township 16 N., of range 13 east, containing 160 acres, which was pre-empted by John Seltzer, on which was laid land warrant No. 30,908, in the name of John S. Mink, and by the said John Seltzer conveyed to the Florence Land Company.” This deed is signed by Philip C. Chapman, and attested by James C. Mitchell, and is acknowledged. This deed, although absolute in form, was in fact a mortgage; and in February, 1860, Parker brought an action against the Florence Land Company to have the deed declared a mortgage and foreclosed, and a decree was entered as prayed for in the petition, and a deed executed to Parker on the 20th of July, 1860, by one J. G. Chapman, as master in chancery. On the 26th of March, 1858, the Florence Land Company gave a promissory note to James G. Megeath, and in October, 1859, he brought suit thereon, and recovered a judgment, July 6, 1860; and on the 22d of September, 1863, an execution was duly issued on the judgment, and the land in controversy sold to Charles H. Brown, who afterwards conveyed to Joseph Megeath, who conveyed to Homan & Bingham. In 1868, Parker sold 160 acres of land, including that in controversy, to George W. Forbes, who gave a purchase-money mortgage to Parker. In May, 1876, Parker brought an action to foreclose the mortgage, and Lucinda Randolph, who had purchased the 40 acres in controversy, was made a defendant, with some 20 others, the general allegation as to their interests being as follows: “The said plaintiff also says that the said defendant Forbes has not paid the taxes levied and assessed against the said premises, but has suffered the same to become delinquent, and that the said premises, or a portion thereof, have been sold for taxes. The said plaintiff also says that the other defendants herein named have or claim some interest in or lien upon the said premises, or some portion thereof, either by purchase or by mortgage or judgment liens or otherwise, but of the exact nature or extent of the said interest or liens the said plaintiff is not advised; but plaintiff alleges that the said interests or liens, of whatever kind or nature, were all acquired subsequent to the execution and recording of the said mortgage to the said plaintiff hereinbefore described, and are subject thereto.” In its decree the court found that Parker had redeemed the N. E. 1/4 of the S. W. 1/4 of section 34, and paid therefor the sum of $184.32, and found the amount due on the mortgage to be the sum of $2,966.67.

The court, after directing the sale of a portion of the mortgaged premises, rendered a decree as follows: “And the court further finds that since the execution of the said mortgage the said Forbes has suffered a portion of the said lands in said petition described, to wit, the N. W. 1/4 of the N. E. 1/4 of the said section 34, to be sold for taxes, and that, the time for the redemption of the same having expired, a deed was made to the purchaser at said tax sale for said lands by the county treasurer of said county, and that the said purchaser now holds the tax title to said lands. And the court further finds that since the execution of said mortgage the said Forbes has sold and conveyed to different purchasers, and at different times, portions of the said lands in said mortgage described, designating the same as lots in said Forbes' subdivision of the S. W. 1/4 of said section 34, and that the said portions so sold were designated and conveyed in the following order, to-wit: (1) Lots 5 and 6 in said subdivision to A. Rosenberry, March 24, 1869; (2) lot 4 in said subdivision to Darrius Pearce, April 5, 1869; (3) lot 3 in said subdivision to John H. Burnett, November 16, 1871; (4) lot 8 in said...