Linton v. Cooper

• Decision Date: 03 January 1898
• Citation: 53 Neb. 400,73 N.W. 731
• Parties: LINTON ET AL. v. COOPER ET AL.
• Court: Nebraska Supreme Court

53 Neb. 400

73 N.W. 731

LINTON ET AL.

v.COOPER ET AL.

Supreme Court of Nebraska.

Jan. 3, 1898.

Syllabus by the Court.

1. As between the parties, an acknowledgment is not essential to the validity of a conveyance, unless the property be a homestead or for the purpose of barring dower.

2. A conveyance by a married woman of her separate property, not her homestead, is valid between the parties, though not acknowledged.

3. A valid acknowledgment permits a conveyance to be received in evidence without further proof, but one not acknowledged may be received in evidence if its execution and delivery be otherwise proved.

4. A married woman may pledge her separate estate to secure an indebtedness of her husband, but there must be a new consideration to sustain a mortgage to secure his antecedent debt.

5. The making of further advances to the husband is a sufficient consideration to sustain a mortgage by the wife of her separate property to secure an antecedent debt. In such case the repayment of the subsequent advances does not discharge the mortgage.

6. Evidence examined, and held to conclusively show a delivery of the mortgage in suit, and a valid consideration therefor.

Appeal from district court, Douglas county; Ferguson, Judge.

Action by Elwina Linton and another against John Whittaker Cooper and others to cancel a mortgage and deed. Defendants filed a cross petition to foreclose both instruments. There was a finding for plaintiffs, and defendants appeal from an order denying foreclosure and canceling the mortgage. Reversed.Chas. A. Goss and John L. Webster, for appellants.

John T. Cathers and Wm. A. Redick, for appellees.

IRVINE, C.

This action was begun by Phœbe Rebecca Elizabeth Elwina Linton, and her husband, Adolphus Frederick Linton, against John Whittaker Cooper and others, composing the firm of Brown, Janson & Co., bankers in London; the object being to have declared void and canceled a mortgage to secure £ 10,000, purporting to have been made by the Lintons to Brown, Janson & Co. on 50 acres of land in Omaha, and also a deed purporting to convey certain other lands in Omaha, from the Lintons to Brown, Janson & Co. Brown, Janson & Co. answered, and, by cross petition, sought the foreclosure of both instruments, alleging that the deed had been executed to secure the payment of a debt. On the trial the plaintiffs dismissed their petition, and the defendants abandoned all claim under the deed, so that the case proceeded as one by the defendants against the plaintiffs to foreclosure the mortgage on the 50 acres. There was a finding for the plaintiffs, and a decree denying foreclosure and canceling the mortgage. The defendants appeal.

Although both in the district court, and in this, the burden lies upon the defendants to establish the mortgage, the case can be best developed by stating the defenses relied on by the plaintiffs. These, while voluminously pleaded, may be briefly analyzed as follows: (1) That the mortgage was never delivered; (2) that it was not acknowledged according to law; (3) that, if given at all, it was to secure only the past-due indebtedness of Mr. Linton, and covered the separate property of Mrs. Linton, and was without consideration as to her.

Mrs. Linton is of American birth, the daughter of John Borland Finlay. Mr. Linton is a British subject; and the two seem to reside in England, although their letters in evidence are dated from London, Brighton, Ostende, and Aix-la-Chappelle. Mrs. Linton is the owner in her own right of a considerable amount of property in and about Omaha, including the 50 acres in controversy. Mr. Linton had an account in 1889 with the banking firm of Brown, Janson & Co., the defendants. On the face of this account he was, in October of that year, in debt to the bank in a large sum, apparently something over £ 12,000. An effort is made to show that at least £10,000 of this debt was not really his, but that of Coates, Son & Co. We need not pay much attention to this branch of the case. In the light most favorable to Mr. Linton, it would seem to be a debt for which both he and Coates, Son & Co. were liable, and the only question would be, which is the principal debtor, and which the surety?

There is in the record a judgment at law in England, from which it appears that Linton had been adjudicated the debtor of the bank to the amount claimed. It is the theory of the defendants that the mortgage was delivered October 21, 1889, to cover the existing indebtedness of Linton to the bank, together with future advances. The mortgage is dated April 15, 1889. It is clear that it was not originally executed for the purpose of covering this debt, but was, on the contrary, executed with a view to obtaining other advances from the bank for different purposes. The negotiations for this loan resulted in its rejection by the bank, and the mortgage was returned to Mr. Linton without delivery. How it again got into the possession of the bank raises the crucial question in the case so far as it concerns the delivery of the mortgage. Mr. Cooper seems to have transacted all the business on behalf of the bank. He was present at the trial, and we have his testimony. According to him, Mr. Linton, being heavily indebted, as already stated, and desiring further advances, offered to give security in the form of this mortgage. Mr. Cooper desired some assurance from Mrs. Linton that the arrangement was satisfactory to her. The conversation on this subject occurred October 18, 1889. Accordingly, Mr. Linton returned on October 21st, bearing the following letter, which it is admitted was signed by Mrs. Linton: “Cabarston House, Oct. 18th, '89. Sir: My husband tells me that you are under the impression that I have trustees in America. The only one I have is for the property left me by my mother, which is all in Pennsylvania, and is now being contested, as I am advised by counsel that he has no right to hold the property, as the will was invalid. The whole of the Linton estate in Omaha belongs to my husband and myself. My husband has my authority to make arrangements with your bank about the property, and any arrangement made by him I will agree to. I am not an American, as Mr. Van Wagner stated, but a British subject; and all documents signed by me must be judged by the English courts alone. Believe me, truly yours, Elwina Linton.” Relying on this letter, Mr. Cooper accepted the mortgage on October 21st, and, on the faith thereof, made a further advance to Mr. Linton of £>>3,800. These facts are denied by the Lintons. In order to explain their theory, it is necessary briefly to recur to the former transactions. They claim that, after the former negotiations had failed, the mortgage was returned to Mr. Linton. Col. Finlay was during the summer in England. Linton was about, in his presence, to destroy the mortgage when Finlay dissuaded him. Negotiations were then in progress looking towards a loan of £>>50,000 on the security of Mrs. Linton's American property. Abstracts and other documents had been placed in the hands of a Mr. Van Wagner, an American lawyer in London, for the purpose of procuring from him an opinion as to title, and as to the form of the securities; and Col. Finlay desired to submit this mortgage to Mr. Van Wagner, to ascertain whether it was in proper form for the securities which it was contemplated giving. An opinion was rendered by Mr. Van Wagner to Messrs. Janson, Cobb, Pearson & Co., solicitors of London, and the papers returned to them. The mortgage in question happened thus to come into the hands of these solicitors, who represented Brown, Janson & Co., and in some way passed from them to the bank.

A great deal of the evidence is devoted to tracing the mortgage between the time of its execution, in April, and the 21st of October. We need not inquire very closely into this, because we take it that although the mortgage was originally intended for another purpose, and was not in fact delivered for its original purpose, still, if it came properly into the hands of Brown, Janson & Co. in October, by delivery by the mortgagors, with the intention of having it operate as security as alleged by the bank, it would be a valid instrument for that purpose. Mrs. Linton testified that she never authorized such a delivery. Mr. Linton testified that he never so delivered it. Ordinarily, this would create such a conflict in the evidence that we would not be at liberty to disturb the finding of the trial judge thereon; the credibility of witnesses being generally a matter for the determination of the triors of fact in the district court. This rule is not, however, so rigid as to compel us to accept the statement of a witness in the district court, where it is absolutely demonstrated to be false or mistaken. We would not be compelled to approve a finding that two and two make five, or that on a certain morning the sun rose in the west, although some witness may have so testified, and honestly believed it to be the fact. The letter already quoted goes far to show that Mrs. Linton did at that time intend that the mortgage should be delivered, and that she granted to Mr. Linton full authority in the premises. This letter is explained by both on the theory that they had in view the consummation of the larger loan, and that the letter referred to those negotiations, and not to this mortgage. Their subsequent conduct conclusively repels that theory. Before referring to the evidence as to subsequent events, it may be proper to say that the plaintiffs contend that the subsequent conduct of Mr. Linton could in no wise tend to bind Mrs. Linton. Whether this is true, in view of the very broad and general authority conferred by the letter of October 18th, we need not inquire. Mr. Linton's subsequent conduct and admissions were admissible in evidence for the purpose of impeaching his own testimony, if for no other purpose. On December 19th he addressed to Coates, Son & Co. a letter,...