Montague v. Marunda

• Decision Date: 05 May 1904
• Docket Number: 13,586
• Citation: 99 N.W. 653,71 Neb. 805
• Parties: JAMES MONTAGUE v. MINNA MARUNDA
• Court: Nebraska Supreme Court

99 N.W. 653

71 Neb. 805

JAMES MONTAGUE v. MINNA MARUNDA

No. 13,586

Supreme Court of Nebraska

May 5, 1904

ERROR to the district court for Dawes county: WILLIAM H. WESTOVER JUDGE. Affirmed.

AFFIRMED.

Allen G. Fisher, for plaintiff in error.

A. W Crites and W. W. Wood, contra.

LETTON C. AMES and OLDHAM, CC., concur.

OPINION

LETTON, C.

This is a proceeding in error to review the action of the district court for Dawes county in distributing a surplus of money arising from a sale under a mortgage foreclosure. The facts are as follows: In 1888, Albert Neuman and Lulu Neuman, his wife, resided upon a certain tract of 160 acres of land in Dawes county, which he had taken as a preemption claim and had made final entry upon. On the 1st day of August, 1888, Neuman and his wife executed a mortgage to W. H. Lanning, trustee, to secure a loan on the premises. After the execution of the mortgage a deed was apparently executed, by Lulu Neuman, as grantor, her husband joining with her in the execution of the deed, to one Edward Roberts. This deed was acknowledged by Mrs. Neuman alone before one Peter Hall, a justice of the peace in and for Dawes county. Roberts moved upon the land with his family in March, 1890, and lived there for several years, when he moved to other land adjoining the same, but fenced the Neuman tract, together with his other land, in one inclosure, living within the inclosure. In 1895 Roberts died, but his widow remained in possession of the premises until about the 30th day of March, 1900, when deeds were executed by the heirs of Roberts and his widow to one Ed Marunda, and Marunda took possession under the same. On May 17, 1900, an action was begun in the name of the McKinley-Lanning Loan & Trust Company to foreclose the mortgage. Albert Neuman, Lulu Neuman, Edward Roberts, Mrs. Edward Roberts and the unknown heirs of Edward Roberts were made parties defendant.

It is stated in the briefs that Ed Marunda was made a party to this foreclosure action on his own application, and the record shows that he filed an answer, setting up that he had a legal interest in the land in controversy, "said legal interest being an equitable title to the lands described in the plaintiff's petition herein, by a conveyance dated April 3, 1900," and praying that he be permitted to participate in any surplus money remaining from the sale of the lands. No service was had upon Albert Neuman, and no decree taken as to him, but a decree of foreclosure was rendered in the case against the other defendants, ordering the land sold to satisfy the mortgage. The decree of foreclosure makes no finding with reference to the interest of Marunda in the premises. A sale was had under the decree, and Marunda bought the land, but this sale was set aside and a new sale made to James Montague. This sale was confirmed, and a deed ordered and made to Montague, March 13, 1903. After the payment of the mortgage debt, there remained in the hands of the sheriff a surplus of $ 610.45, which is in controversy in this case. On the 11th day of January, 1901, a quitclaim deed was executed by Albert Neuman to James Montague for this land, which was filed for record on February 9, 1901, in the office of the county clerk of Dawes county. The consideration recited in this deed was the mortgage indebtedness upon the land and $ 5 in hand paid. Ed Marunda died in August, 1902, and his wife, Minna Marunda, was apparently appointed administratrix of the estate.

A motion was afterwards filed by Minna Marunda, asking the court to return to her, as administratrix of Ed. Marunda, the money paid in by Marunda to the sheriff upon his bid for the land, and also praying for an order upon the sheriff, to pay to the clerk of the court the surplus in his hands arising from the sale to Montague. In the meantime Montague had demanded the surplus from the sheriff, which demand was refused, and an action was brought by him against the sheriff to recover the same. On the 17th of April, 1903, a hearing was had upon these motions of Minna Marunda. The motions were sustained, and the sheriff ordered to pay to the clerk of the court "the surplus now in his hands, amounting to $ 610.45, and to further pay said administratrix the $ 900 bid by Ed Marunda at the sale which had been set aside. Montague excepted to these orders. It appears that Minna Marunda, as the widow of Ed Marunda, and one Herman Marunda, a brother of Ed Marunda, had, before this time, filed petitions for a part of the surplus, and the court ordered that the plaintiff and James Montague plead to said applications within 30 days. On July 13, 1903, Montague filed a special appearance, and objections to the jurisdiction of the court, which objections were overruled, and exceptions taken, whereupon he presented to the court a demand for a trial by jury, which was refused and exception taken. Afterwards, he filed an answer, setting up that he was plaintiff in another action pending against the sheriff for the same money; that the court has no jurisdiction; denies the ownership of Ed Marunda or his heirs to the land in question; alleges that the premises were the homestead of the Neumans until the year 1900, and alleges that the facts set forth in the petition do not constitute a cause of action. A reply was filed by the Marundas denying every allegation in this answer. Hearing was had upon the 21st day of July upon the issues thus framed. The court found that the land, at the time of the death of Ed Marunda, belonged to him, and descended to his heirs, subject to the dower estate of his widow, Minna Marunda; ascertained the value of her dower estate, and the shares of the respective petitioners; directed the payment of the same to them, and found generally in favor of the petitioners and against Montague. Exceptions were taken, and a bill of exceptions duly settled and filed, which presents the evidence in support of this proceeding for review.

As to the special appearance and objections to the jurisdiction of the court, filed by James Montague on the 13th of July, 1903, it is sufficient to say that, on the 17th day of April, at the time that the hearing was had upon the motions of Minna Marunda, above mentioned, the record shows that an appearance was made by Montague, objecting to the motions; and, further, a motion was made on his own behalf by Montague, seeking to put the powers of the court in motion for his own benefit. By thus appearing and invoking the action of the court, Montague appeared generally in the cause, and could not afterwards be heard to say that his appearance...