Lowenstein v. Phelan
| Decision Date | 11 March 1885 |
| Citation | 17 Neb. 429,22 N.W. 561 |
| Parties | LOWENSTEIN v. PHELAN AND WIFE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Nemaha county.
E. W. Thomas, for plaintiff.
S. P. Davidson, for defendant.
This is an action to foreclose a mortgage upon real estate. The defense is usury. The plaintiff claims to be a bona fide purchaser of the notes and mortgage for value, without notice, and before the maturity of the notes. On the trial of the cause the court made special findings-- First, that the notes in question were given for a usurious consideration; second, that the plaintiff purchased the notes in controversy in the regular course of business, in good faith, for a valuable consideration, and without knowledge or notice that they had been given for a usurious consideration, or that any prior note described in the mortgage had been unpaid within 30 days after its maturity, except such notice as was given by the terms of the mortgage itself. The court also found that the terms of the mortgage charged the plaintiff with notice, and that he took the notes subject to the usurious consideration. The court also found that the payments heretofore made by the defendants upon the notes and mortgage in question fully paid the principal of the same, and that nothing was due the plaintiff. The action was therefore dismissed at the plaintiff's costs. The mortgage contains the following provision: “It is hereby agreed that if this land, or any part thereof, is now or shall hereafter be sold for taxes, the said second party may redeem the same, and add the cost of redemption, with agent's fees of ten per cent., to the debt hereby secured; also that if said land is hereafter sold for tax, or if the annual interest on any of said notes, or if any one of said notes, remains unpaid for thirty days after maturity, this entire debt, all of said described notes, principal and interest, shall become immediately due and payable, and this mortgage may then be foreclosed.” A stipulation of this kind, being the deliberate contract of the parties, will be enforced by a court of equity. Pope v. Hooper, 6 Neb. 178; Fletcher v. Dougherty, 13 Neb. 224;S. C. 13 N. W. REP. 207;Savannah & M. R. Co. v. Lancaster, 62 Ala. 555; Railway Co. v. Sprague, 103 U. S. 756.
The provision, however, is for the benefit of the mortgagee, to enable him to procure the money loaned at the time it was agreed to be paid. If the mortgagee so desire, he may institute an action upon...
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G. T. Fogle & Co v. King
...Co. v. Martens et al., 9 Cir., 271 F. 428, certiorari denied 1921, 257 U.S. 637, 42 S.Ct. 49, 66 L.Ed. 410; Lowenstein v. Phelan et al., 17 Neb. 429, 22 N.W. 561; and Town of Cheraw v. Turn-age, 184 S.C. 76, 191 S.E. 831 are left for consideration. The first two cases involve suits to enfor......
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G. T. Fogle & Co. v. King
... ... v. Martens et al., 9 ... Cir., 271 F. 428, certiorari denied 1921, 257 U.S. 637, 42 ... S.Ct. 49, 66 L.Ed. 410; Lowenstein v. Phelan et al., ... 17 Neb. 429, 22 N.W. 561; and Town of Cheraw v ... Turnage, 184 S.C. 76, 191 S.E. 831 are left for ... consideration ... ...
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Fogle v. King, (No. 9967)
...Twin Falls Water Co. v. Martens, et al, 271 Fed. 428, certiorari denied (1921) 257 U. S. 637, 66 L. Ed. 410; Lowenstein v. Phelan, et at., 17 Neb. 429, 22 N. W. 561; and Town of Cheraw v. Turnage, 184 S. C. 76, 191 S. E. 831 are left for consideration. The first two cases involve suits to e......
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National Bank of Commerce Trust & Savings Ass'n v. Ham, s. S-97-1120
...made was permissive only and not self-operative. See, also, McCarthy v. Benedict, 89 Neb. 293, 131 N.W. 598 (1911); Lowenstein v. Phelan, 17 Neb. 429, 22 N.W. 561 (1885). Courts in other jurisdictions have opined that the better-reasoned authorities hold that an acceleration provision, alth......