Lincoln Bldg. & Saving Ass'n v. Hass

• Decision Date: 11 November 1880
• Citation: 7 N.W. 327,10 Neb. 581
• Court: Nebraska Supreme Court
• Parties: LINCOLN BUILDING & SAVING ASS'N v. HASS AND OTHERS.

10 Neb. 581

7 N.W. 327

LINCOLN BUILDING & SAVING ASS'N

v.HASS AND OTHERS.

Supreme Court of Nebraska.

Filed November 11, 1880.

Appeal by defendant Hass from a decree of foreclosure rendered in the district court of Lancaster county. The facts are sufficiently stated in the opinion.Burr & Kelley, for appellant Hass, cited Gen. St. 875, § 15; Id. 248 and 249, §§ 1 to 7; Edminster v. Higgins, 6 Neb. 269; Metz v. The State Bank, 7 Neb. 171; Gilbert v. Jess, 31 Wis. 110;Internatioual Life Ins. Co. v. Scales, 27 Iowa, 640; Pringle v. Dunn, 37 Wis. 449, and cases there cited; Hamilton v. Doolittle, 27 Ill. 483;Morgan v. Clayton, 59 Iowa, 40, and cases cited; Kerr on Fraud and Mistake, 312, 313, 316, and cases cited; 1 Story's Eq. Jur. § 409; Deroin v. Jennings, 4 Neb. 100.

Harwood & Ames, for appellee, cited Jones on Mortgages, §§ 679, 682, 825, 1483, 1656, 1771; Crane v. Turner, 7 Hun. 357; Waring v. Smythe, 2 Barb. Ch. 119;Jackson v. Malin, 15 John. 297;Caldwell v. Sigourney, 19 Conn. 48; Walker v. Lincoln, 45 Me. 67; McConnell v. Reed, 5 Ill. 117;Staffel v. Shroeder, 62 Mo. 147;Maniwarring v. Terry, 39 Texas, 67;Carter v. Wise,Id. 273.

LAKE, J.

None of the testimony taken by the referee being in the record, his report of facts cannot be questioned, but must be treated by us as fully supported by the evidence. Besides the existence of the plaintiff as a corporation under the laws of this state, the material facts thus established are the following, viz.: That the defendant William Chapin, being the owner in fee-simple of the land in controversy, for a valuable consideration undertook to convey it to the defendant William F. Chapin, but by mistake in the description this land was altogether omitted, and other land, to which the grantor has no title, covered by the deed; that afterwards, on the twentieth of June, 1874, William F. Chapin, in due form, mortgaged the land so intended to be conveyed to the plaintiff, and on December 15, 1875, conveyed the same by warranty deed to the defendant Burr, who took it, however, with actual notice of the existence of said mortgage as an incumbrance thereon. Burr afterwards sold, and by warranty deed formally conveyed, the land to the defendant Hass, who had no actual notice of the mortgage. The consideration paid by Hass was $800, which appears to have been the fair value of the land at that time. It also appears that on the thirteenth of March, 1877, Burr procured from William Chapin to himself a quitclaim deed, in which the premises were described correctly. These several instruments were duly recorded in the order of their execution.

From these findings of the referee it is established from the beginning of these several transactions, and up to the execution of the quitclaim deed, the legal title to the land was in William Chapin, and that his immediate grantee and all of the other defendants were dealing with a mere equity. When William F. Chapin executed said mortgage to the plaintiff and the deed to Burr, and also when Burr deeded to Hass, there was nothing of record by which either of them could trace any title from the government to himself. But notwithstanding this want of record evidence of title in himself, William F. Chapin, by the deed he received from William Chapin, became the equitable owner of the land, and was in a situation to demand and compel such a conveyance as they had agreed should be made; and this equitable interest was one which he could encumber by mortgage, or convey by deed, as it is shown he did.

When Hass took the conveyance from Burr the county records failed to show in the latter any interest in the land on which it could with certainty operate. There was, to be sure, the record of a formal deed to Burr from William F. Chapin, who might or might not have had an interest therein which he could thus dispose of. Whatever interest he did have, Burr of course had taken, but nothing more. It happened that he did have the equitable title, as before stated; but the records disclosed the fact, of which Hass was bound to take notice, that this had been mortgaged to the plaintiff long before the execution of the deed to Burr, and that, therefore, the latter had taken, and could convey, an encumbered interest only.

But did...