Keedle v. Flack

• Citation: 27 Neb. 836,44 N.W. 34
• Parties: KEEDLE v. FLACK.
• Decision Date: 12 November 1889
• Court: Supreme Court of Nebraska

27 Neb. 836

44 N.W. 34

KEEDLE

v.FLACK.

Supreme Court of Nebraska.

Nov. 12, 1889.

Syllabus by the Court.

Where a land-owner sells real estate upon which he has given a mortgage, and the purchaser, as part of the consideration, assumes the mortgage debt, and agrees to pay the same, the mortgagee, after the debt becomes due, may bring an action against the purchaser, and recover the amount due thereon. Cooper v. Foss, 15 Neb. 516, 19 N. W. Rep. 506;Shamp v. Meyer, 20 Neb. 223, 29 N. W. Rep. 379.

Error from district court, Hamilton county; NORVAL, Judge.Bowen & Hoeppner, for plaintiff in error.

Agee & Stevenson, for defendant in error.

MAXWELL, J.

This action was brought by defendant in error against James M. Miller, Emma Miller, John B. Keedle, John W. Harris, A. R. Hoagland, and A. Veith, upon a promissory note, executed and delivered on the 12th day of March, 1888, by James M. Miller and Emma Miller, to A. W. Agee and William J. Stevenson, for the sum of $648, due eight months after date, with interest at the rate of 10 per cent. per annum from date until paid. At the time of the execution and delivery of said note, defendants Miller and Miller, to secure the payment of said note, executed and delivered to Agee and Stevenson a mortgage upon certain real estate in the city of Brownville, Nemaha county, Neb. The petition alleges that the note was subsequently assigned for value to the plaintiff. The petition, after setting out the note, states that a mortgage was given to secure the payment of the same, and the conditions of the mortgage, etc. It is alleged that “on the 25th day of September, 1888, the said James M. Miller and Emma Miller, his wife, sold and conveyed the premises above described to the defendant John B. Keedle, for the sum of $4,000.00, and that as part payment of said consideration the said John B. Keedle assumed and agreed to pay the note and mortgage hereinbefore described; said agreement being written in the deed of conveyance of said premises, and is as follows, to-wit: ‘And we do hereby covenant with the said John B. Keedle, and his heirs and assigns, that we are lawfully seised of said premises, except a mortgage of $648.00, and interest thereon from March 12, 1888, and the grantee assumes and agrees to pay said mortgage and interest as a part of the consideration.’ Said deed containing said agreement on the part of the said John B. Keedle was duly executed, witnessed, and acknowledged, and delivered to him, and he caused the same to be filed and recorded in said county of Nemaha. Afterwards the said John B. Keedle and his wife, Mary R. Keedle, sold said premises to the defendant John W. Harris, and the said John W. Harris, as a part of the consideration for said premises, assumed and agreed to pay the note and mortgage hereinbefore described, with interest thereon; and by direction of the said John W. Harris the said John B. Keedle and his wife, Mary R. Keedle, made, executed, and delivered to the said A. R. Hoagland a deed of conveyance which contained the following provision, to-wit: ‘And we do hereby covenant with the said A. R. Hoagland, and his heirs and assigns, that we are lawfully seised of said premises; that they are free from incumbrance, except a mortgage of $648.00, and interest thereon from March 12, 1888, and the grantee assumes and agrees to pay said mortgage and interest as a part of the consideration herein,’--which said deed was duly witnessed and acknowledged, and recorded in the deed records of said county of Nemaha; and the plaintiff alleges that said conveyance from said John B. Keedle and Mary R. Keedle to said A. R. Hoagland was made for the use and...