A. J. Minor Lumber Company v. Thompson

• Decision Date: 26 March 1912
• Docket Number: 16,659
• Citation: 135 N.W. 429,91 Neb. 93
• Parties: A. J. MINOR LUMBER COMPANY, APPELLEE, v. ELMER E. THOMPSON; A. J. SHUMWAY, INTERVENER, APPELLANT
• Court: Nebraska Supreme Court

135 N.W. 429

91 Neb. 93

A. J. MINOR LUMBER COMPANY, APPELLEE, v. ELMER E. THOMPSON; A. J. SHUMWAY, INTERVENER, APPELLANT

No. 16,659

Supreme Court of Nebraska

March 26, 1912

APPEAL from the district court for Scott's Bluff county: HANSON M. GRIMES, JUDGE. Judgment modified.

JUDGMENT MODIFIED.

L. L Raymond, for appellant.

Wright Duffie & Wright, contra.

LETTON J. REESE, C. J., not sitting.

OPINION

LETTON, J.

The controversy in this case is as to the priority of liens. On January 22, 1908, a writ of attachment was levied in this action on certain real estate belonging to defendant Thompson, who is a nonresident of this state. Service was had by publication, and proof thereof made on March 3, 1908. On the same day a deed was placed upon record from Thompson to "A. J. Shumway, Trustee," to the same property. Afterwards, the trustee intervened in this case and filed an amended answer and cross-petition, alleging, in substance, that on November 25, 1907, Thompson executed to him a trust deed to the property; that the agreement between Thompson and him was verbal and not in writing, and that the deed was in fact a mortgage given to secure Shumway and another against loss or damage by reason of each of them having become sureties upon two several notes of Thompson; that Thompson made default in the payment of each of the notes; that the sureties paid them, and there is now due and owing by Thompson to the sureties $ 290.33 and $ 83.50, respectively, which is secured by the trust deed; and further alleging that the lien created by the trust deed is prior and superior to that derived under the attachment proceedings. The prayer was for a foreclosure of the trust deed as a mortgage. A copy of the deed and of the notes mentioned are attached to the cross-petition as exhibits. The reply is a general denial. Defendant Thompson made default. The court found for the plaintiff on its count for goods and merchandise; found for the cross-petitioner, that the deed is in effect a mortgage, and was given to secure the notes as alleged; found, further, that the attachment was the first and prior lien upon the real estate, and the lien of the mortgage junior and inferior thereto. Judgment went for the amount due plaintiff, and a decree of foreclosure was rendered for the amount found due under the mortgage. The intervener excepted to the finding making the judgment the prior lien, and has appealed on this point.

No motion for a new trial was filed. The only point necessary to consider, therefore, is whether the findings and decree are sustained by the pleadings. We have repeatedly held that a prior unrecorded deed conveying title, made in good faith and for a valuable consideration, will take precedence of a title derived by virtue of a sale under attachment or execution, if such deed is placed on record before the sheriff's deed based upon such proceedings is recorded. Harral v. Gray, 10 Neb. 186, 4 N.W. 1040; Mansfield v. Gregory, 11 Neb. 297, 9 N.W. 87...