Moore v. Kime

• Decision Date: 16 January 1895
• Citation: 61 N.W. 736,43 Neb. 517
• Parties: MOORE v. KIME ET AL.
• Court: Nebraska Supreme Court

43 Neb. 517

61 N.W. 736

MOORE

v.KIME ET AL.

Supreme Court of Nebraska.

Jan. 16, 1895.

Syllabus by the Court.

1. Where a defendant files no pleading except a demurrer to the petition, on the ground that it does not state a cause of action, other defendants answering and presenting issues, a decree reciting that the case was heard on the pleadings and evidence, then finding the facts as alleged in the petition, and granting to plaintiff the relief prayed, will be treated as an order overruling the demurrer, and entering judgment thereon.

2. When a debt is payable on a day certain, the creditor is not required to accept payment before that day; and he loses no rights, nor does the debtor gain any, because of a tender made before the debt matured.

3. A. mortgaged land to B. He subsequently borrowed money of C., and mortgaged the same land to secure the debt. It was the intention of A. and C. to discharge B.'s mortgage out of C.'s loan, but B.'s mortgage had not matured and B. refused to accept payment; whereupon, by agreement between A. and C.'s agent, the latter withheld from the loan the amount of B.'s debt, to secure C. against B.'s mortgage. Default was made on both mortgages. Held, that the withholding of the money on such terms did not excuse A. from his obligation to pay C. his debt as it matured; that, at the suit of the mortgagees, B. was entitled to foreclose for the amount of his debt, C. for the amount actually paid to A.,--that is, the face of his note, less the amount withheld as security against B.; and that the district court did not abuse its discretion in awarding costs against the mortgagor.

Appeal from district court, Dawes county; Crites, Judge.

Action by J. L. Moore, trustee, against James B. Kime, Mordecai C. Maxwell, and others. From a judgment for plaintiff, defendants Kime and Maxwell appeal. Modified.

Spargur & Fisher, for appellants.

W. W. Wood, Stewart & Munger, and A. Bartow, for appellee.

IRVINE, C.

March 19, 1888, Mordecai C. Maxwell and wife made a mortgage to the Dakota Mortgage Loan Corporation upon a tract of land in Dawes county, to secure a note for $200, payable April 1, 1893, with interest at 7 per cent., payable semiannually. On the 4th day of September, 1889, the same persons made another mortgage upon this land in favor of William Stewart and Alexander W. Stewart, to secure the payment of a note for $800, payable September 1, 1894, with 10 per cent. interest, payable semiannually. On the same day, Maxwell and wife conveyed the land to James B. Kime and Simon J. Rice, the latter afterwards conveying to Kime. January 2, 1891, Moore, who had succeeded to the ownership of the note in favor of the Dakota Mortgage Loan Corporation, brought this action to foreclose that mortgage, alleging a default in several interest payments, which, by the terms of the note and mortgage, permitted the holder to declare the whole debt due. He made defendants Kime, the Maxwells, and the Stewarts. The Stewarts answered, setting up their mortgage, and alleging a default in the payment of several installments of interest then due, as well as a further default because of the breach of the covenant against incumbrances contained in the mortgage; the incumbrance constituting the breach being the plaintiff's mortgage. Kime demurred, the language of his demurrer being as follows: “Come now the defendant James B. Kime, by Spargur & Fisher, his attorneys, and enters herein his demurrer to the petition and cross petition, and for the following reason: Because it appears upon the face of said cross petition that it does not state facts sufficient to constitute a cause of action, or to entitle them to relief against this defendant.” This demurrer purports to be directed against both the petition and cross petition, but states no ground of demurrer against the petition. Therefore by virtue of section 95 of the Code of Civil Procedure, it must be taken as a demurrer to the petition, on the ground that it does not state facts sufficient to constitute a cause of action. Mordecai Maxwell answered, admitting the execution of the plaintiff's mortgage, and denying all other allegations of the petition. He also asked that Alfred Bartow be made a party. He then averred that he had put into the hands of Bartow $250, and constituted Bartow his agent for the purpose of paying such sum in satisfaction of plaintiff's mortgage; that Bartow did not pay the same, but converted said sum to his own use. He prayed that Bartow be required to pay plainti...