McQuilkin v. Ford
| Decision Date | 03 July 1917 |
| Docket Number | 19594 |
| Citation | 163 N.W. 763,101 Neb. 474 |
| Parties | ROBERT MCQUILKIN, APPELLEE v. JOHN E. FORD ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Red Willow county: ERNEST B PERRY, JUDGE. Affirmed.
AFFIRMED.
Lambe & Butler, for appellants.
G. E Simon and H. W. Keyes, contra.
In this action plaintiff seeks foreclosure of a mortgage securing notes given to him as part of the purchase price for land sold, making Ford, mortgagor, and Ballah, then holder of the legal title, defendants. Ford in his answer claims certain credits on the note and $ 1,500 credit on account of the plaintiff's failure to recover insurance on a building destroyed by a wind-storm. The defendant Ballah, by way of cross-petition, also asks foreclosure of a $ 2,100 note, being one of the notes secured by the mortgage. Plaintiff in his reply denies liability on account of the wind-storm destroying the building, and denies that the $ 2,100 note in Ballah's possession was assigned to him; alleges that it was paid, and that his lien for the remaining notes is superior thereto. The trial court found generally for the plaintiff; found that Ford should be credited with $ 80 interest on the notes; that no liability existed on account of the destruction of the building; that there was due defendant Ballah from Ford $ 2,100 on account of the note set forth in the answer and cross-petition; and gave Ballah a lien upon the land inferior, however, to that of the plaintiff.
The defendant Ballah assigns as error the judgment of the court in making his lien inferior to that of the plaintiff.
When the $ 2,100 note became due the plaintiff took it to the bank where it was made payable, and asked for and received from the cashier of the bank the amount of money due. The cashier at the time wrote an assignment to himself, as cashier, on the back of the note, which plaintiff signed. No negotiations for a transfer of the note were had between them, and the plaintiff did not know that he was assigning the note. Afterwards the defendant Ballah paid to the bank the amount of the note; it was stamped "paid" by the bank and delivered to him.
It appears that prior to this time Ballah, who had been president of the bank, and was then vice-president, living at Norfolk, had spoken to the cashier about the note, saying, as testified to by the cashier, that when the...
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