Kime v. Jesse

• Decision Date: 18 November 1897
• Citation: 52 Neb. 606,72 N.W. 1050
• Parties: KIME v. JESSE ET AL.
• Court: Nebraska Supreme Court

52 Neb. 606

72 N.W. 1050

KIME

v.JESSE ET AL.

Supreme Court of Nebraska.

Nov. 18, 1897.

Syllabus by the Court.

1. The proper and orderly course of attack on a defective petition or answer under the provision of the Code of Civil Procedure is by motion to make more definite and certain, to strike out, or by demurrer, as to reach the claimed defect may require; but under section 440 of said Code, which is as follows: “Where upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party,”--a motion for judgment on the pleadings may be interposed before trial, or at any time during the course of the pleadings, and, if sustained, and the pleading attacked is open to the objections urged against it, the ruling will not be reversed on the ground that such a motion was not proper or allowable.

2. A material alteration of a mortgage without the consent of the mortgagor renders it void. Pereau v. Frederick, 22 N. W. 235, 17 Neb. 117.

3. The material alteration of a mortgage, by which it is avoided, does not avoid a note or evidence of the debt for the payment of which it is the security.

Appeal from district court, Box Butte county; Bartow, Judge.

Suit by Joseph A. Kime against Frank E. Jesse, Mrs. Frank E. Jesse, Frank Bauer, Sr., and Mrs. Frank Bauer, Sr., to reform a mortgage, and for its foreclosure. On motion by defendants Jesse, the mortgage and the note secured by it were declared null and void, and canceled. Affirmed as to the mortgage and reversed as to the note.

R. C. Noleman, for appellant.

Wm. Mitchell, for appellees.

HARRISON, J.

July 26, 1894, the appellant commenced this action in the district court of Box Butte county, alleging in the petition filed that Frank E. Jesse executed and delivered to him on December 16, 1892, a promissory note in the sum of $440, due one year after date, and to secure payment of the debt evidenced by the note executed and delivered to appellant a mortgage, in which it was intended to describe and render liable to the lien the N. W. 1/4 of section 4, township 25, range 47, in Box Butte county, Neb.; that the note and mortgage were prepared in the office of and by an attorney at law and notary public in Alliance, Box Butte county, he having been employed by the parties for such purpose; that in writing the mortgage a mistake occurred in the description of the land therein, by which it was located in township 24, instead of in township 25, its true location, and as it was intended to and should have appeared in the mortgage; that the mortgage as written and executed was, on the 19th day of December, 1892, duly recorded in the proper office. It was further pleaded that at a date subsequent to the reception by the appellant of the mortgage and its record he discovered that the mistake in the description of the land had been made, and the steps then taken by him we will give in the words of the petition as follows: “This plaintiff went at once to the said W. G. Simonson, who drew the mortgage as set out in this petition, and asked him, as the agent of the parties, and as an attorney at law, what was best to be done in the matter, and thereupon the said W. G. Simonson advised and said that he was the agent of both parties to draw up said mortgage, and that it was to be correct, and to convey by mortgage another tract of land; and the said W. G. Simonson then corrected said mortgage to read ‘township 25,’ as was intended that it should read, instead of ‘township 24,’ as it by mistake did read.” “(10) The said plaintiff, acting in good faith, and relying on the validity of said correction, at once had said mortgage recorded as the same was after being corrected, in manner and form as heretofore set out in this petition. Said recorded mortgage, as recorded at this time, to wit, June 14, 1893, was duly recorded in Book 14 of the Mortgage Record of Box Butte County, Nebraska, at page 8, and remains of record to this date. He relied wholly on the ability of W. G. Simonson as an attorney, and on his statements that he was agent for both parties, and had a right to correct said mortgage; and that it was corrected, not by the request of plaintiff, but by the consent of plaintiff, relying on the statements of W. G. Simonson that he was the agent of Frank Jesse; and, if there was a wrong done in this matter, it has been done by the agent of Frank Jesse, as this petitioner believes.” It was further pleaded that Frank E. Jesse intermarried with the daughter of one Frank Bauer, Sr., and afterwards, and also subsequent to the time Frank E. Jesse had ascertained the fact of the mistake in the description of land in the mortgage, he conveyed the real estate which it was intended should have been included in the mortgage to Frank Bauer, Sr., who was then the father-in-law of the said Frank E. Jesse, the consideration for such transfer stated in the conveyance being $1,000; that in fact there was no consideration passed between the son-in-law and the father-in-law; the conveyance was but a pretension, and the sale pursuant to which it purported to be executed was a sham, and unreal. The prayer of the petition was for a reformation of the mortgage, and its foreclosure. A demurrer to the petition was filed for the defendant Bauer, but it seems not to have received any further notice. The record does not disclose that it was ever presented to the court, or passed on. For Frank E. Jesse and his wife, defendants, there was filed the following motion: “Come now the defendants Frank E. Jesse and Mrs. Frank E. Jesse, and move the court for judgment of cancellation of mortgage in above-entitled case, and that same be declared void and fraudulent, for the reason that plaintiff admits and pleads in his petition that mortgage upon which this action is brought is not mortgage executed by Frank E. Jesse, but one that was changed so as to conform to ideas and understanding of W. G. Simonson, a notary public, who executed first mortgage.” Of the action taken on this motion there is the following journal entry: “Now, on this 19th day of Sept., 1894, this cause came on to be heard on motion of defendants Frank E. Jesse and Mrs. Frank E. Jesse,--first name unknown,--for judgment on pleadings, a cancellation of mortgage in this case, and that same be declared void; whereupon the plaintiff was allowed to amend his petition instanter, but, plaintiff asking for more time, he was allowed until Sept. 20, 1894, to amend his petition. Sept. 21, 1894, the above motion of defendants Jesse is sustained, and mortgage and note involved in this case is, and the same is hereby, considered and adjudged by the court, after being fully advised in the matter, to be null and void, and note and mortgage are hereby canceled. Plaintiff excepts, and is given 40 days to file his bill of exceptions.”

It is argued that a motion for judgment on the pleadings could not be interposed and entertained at the stage of the proceedings...