McHugh v. Smiley

• Decision Date: 07 July 1885
• Citation: McHugh v. Smiley, 17 Neb. 626, 24 N.W. 277 (Neb. 1885)
• Parties: WILLIAM MCHUGH, APPELLANT, v. JOHN A. SMILEY ET AL., APPELLANTS, AND ELLEN P. FORBES ET AL., APPELLEES
• Court: Nebraska Supreme Court

24 N.W. 277

17 Neb. 626

WILLIAM MCHUGH, APPELLANT, v. JOHN A. SMILEY ET AL., APPELLANTS, AND ELLEN P. FORBES ET AL., APPELLEES

Supreme Court of Nebraska

July 7, 1885

REHEARING of foregoing case.

OPINION

MAXWELL, J.

After the filing of the opinion in this case a motion for a rehearing was made which was sustained and the cause again argued and submitted to the court.

The action is brought to foreclose a deed absolute on its face executed on the 22d of October, 1877, by John A. Smiley and wife to the plaintiff, for the W. 1/2 of the S. E. 1/4 of Sec. 3, T. 15, R. 13 E., in Douglas county. The defendants Morton, Forbes, and Burley, claim to have purchased portions of said premises under judgments against Smiley. The court below found that the deed from Smiley and wife to the plaintiff was a mortgage; but sustained the claims of the other defendants to portions of the land in controversy. On the former hearing this court held that as the court below had found the instrument of conveyance to be a mortgage and not an absolute deed, that therefore there was no sale of the land by Smiley and wife, and it being their homestead, no authority for the defendants named to levy their executions on any portion of the land and sell the same. In other words that the findings of fact would not support the conclusions of law, and as the interests of said purchasers under the execution were separate and distinct from those of the plaintiff they should have appealed from that part of the decree. A careful re-examination of the records satisfies the writer that he was in error in this. The rule as to appeals appears to be this, that when the action is against several defendants who have distinct and separate defenses the judgment as to one defendant in a proper case may be appealed; in which case it will only be necessary to take up so much of the record as pertains to his case. Where however, the interests of the parties are inseparably connected an appeal will take up the case as to all. Glass v. Greathouse, 20 Ohio 502. Hocking Valley Bank v. Walters, 1 Ohio St. 201. Emerick v. Armstrong, 1 Ohio 513. We are of the opinion that the interests of the parties in this case are so connected that the appeal by the plaintiff brought up the entire case. If a decree is rendered in favor of a party and he is satisfied with the relief granted, it certainly would be very unreasonable to require him to appeal to save his rights. But the law does not require him to do so, and he may rely upon his decree until it is questioned by the other side in some of the modes provided by law.

2. It appears from the record that Smiley had a prolonged contest to obtain a title to his land, which seems to have terminated in his favor about the year 1872. The taxes were unpaid on the land, and about the year 1875 it was purchased by one Bryant for a portion of the delinquent taxes due thereon. In January, 1877, Bryant obtained a tax deed for said premises.

The exact amount of such delinquent taxes and interest does not appear, but evidently was a very large sum. On the 22d of October, 1877, the plaintiff obtained a quit-claim deed from said Bryant for said premises, the expressed consideration being the sum of $ 1,940. The plaintiff also paid the taxes on said land from October 22d, 1877, till about the time of the commencement of the suit, amounting to several hundred dollars. There was also a mortgage executed by Smiley and wife on said premises in 1874, to Patrick McHugh, upon which there was due October 22d, 1877, the sum of $ 1,873. The plaintiff at or about the 22d of October, 1877, paid Patrick McHugh the amount of his mortgage, and to secure the payment of the same together with the $ 1,940 to redeem the land from tax sale and other claims amounting in all to the sum of $ 4,400.54 took a deed of conveyance of said premises from Smiley and wife, and executed and delivered to Mrs. Smiley an agreement to reconvey to her upon the payment of said amount with interest at any time within eighteen months, and executed to Mr. Smiley a lease for the premises for one year. The deed and lease seem to have been recorded soon after their execution. The Smileys continued to reside on the premises, and it was their home.

Prior to the conveyance of...