Hubbard v. Knight
| Decision Date | 06 October 1897 |
| Docket Number | 7457 |
| Citation | 72 N.W. 473,52 Neb. 400 |
| Parties | CARRIE A. HUBBARD ET AL., APPELLEES, v. BENJAMIN P. KNIGHT, IMPLEADED WITH CHARLES DOLL, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before FERGUSON, J. Affirmed.
AFFIRMED.
G. W Shields, for appellant.
E Wakeley, contra.
This case has been advanced and submitted under rule 2. The facts necessary to an understanding of the questions involved and decided are briefly as follows: Carrie A. Hubbard owned certain real estate situate in Douglas county and mortgaged the same to secure a debt of $ 2,500 and interest, which mortgage was duly recorded. Subsequently she sold and conveyed an undivided half interest in this real estate to Benjamin P. Knight for the consideration of $ 3,200, $ 1,000 of which Knight then and there paid in cash and discharged the remaining consideration by assuming and promising to pay $ 2,200 and interest of the mortgage previously placed on said real estate by Carrie A. Hubbard. This contract between Knight and Hubbard was fully expressed in the deed from Hubbard to Knight, which deed was duly recorded. Subsequent to the recording of his deed Knight mortgaged his interest in the real estate purchased of Hubbard to secure a debt of $ 1,000. The note evidencing this debt and the mortgage securing the same were subsequently sold and assigned to Charles Doll, who now owns and holds the same. Knight neglected to pay the $ 2,200 mortgage on the premises conveyed to him by Hubbard, and she was compelled to, and did, advance and pay said mortgage debt. She then brought suit to foreclose the mortgage paid by her and asked to be subrogated to the rights of her mortgagee as against Knight, and to have $ 2,200 and interest of the amount due on the mortgage which she had paid declared a first lien upon the real estate which she had conveyed to Knight. Doll filed a cross-bill setting up the mortgage made by Knight and sought to have it declared a lien upon the lands conveyed to the latter by Hubbard, and claimed that Hubbard's mortgage was only a first lien upon the lands conveyed to Knight to the extent of $ 1,250 and interest, or one-half the mortgage made by Hubbard. It also appears that Doll is an innocent purchaser for value before maturity of the Knight note and mortgage, and had no actual notice or knowledge of the agreement of Knight to assume and pay $ 2,200 of the mortgage made by Hubbard in consideration of the conveyance of the real estate made by her to him. The court entered a decree subrogating Carrie A. Hubbard to the rights of her mortgagee as against Knight, and giving her a lien upon the undivided half interest of the real estate conveyed to Knight for the $ 2,200 and interest. From this decree Doll has appealed.
1. The decree of the district court is right for the following reasons: If Mrs. Hubbard's mortgagee had brought suit to foreclose his mortgage, making Mrs. Hubbard and Knight parties, the proper decree would have been that Knight's interest in the real estate conveyed to him by Hubbard should be sold to satisfy $ 2,200 and interest of the mortgage debt before selling Mrs. Hubbard's...
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