Morrow v. Jones

• Decision Date: 02 October 1894
• Citation: 60 N.W. 369,41 Neb. 867
• Parties: MORROW ET UX. v. JONES.
• Court: Nebraska Supreme Court

41 Neb. 867

60 N.W. 369

MORROW ET UX.

v.JONES.

Supreme Court of Nebraska.

Oct. 2, 1894.

Syllabus by the Court.

1. Mutual promises constitute a sufficient consideration to support a contract.

2. J. gave a real-estate mortgage to M. to secure a loan of money, and after the debt matured M. brought an action to foreclose the mortgage, a decree was entered, and the property sold to R. for a sum considerably less than the debt, interest, and costs. Before confirmation, M.'s attorney in the foreclosure proceedings, on behalf of M., but without his written authority so to do, wrote a letter to J., inclosing a deed for the property, in which M. was named as grantee, and an assignment of the equity of redemption, making a proposition that if J. would execute and return the deed and assignment she could redeem the property at any time by paying the amount of the mortgage, costs, and interest. J. accepted the proposition, executed the deed and assignment, and returned the same to the attorney, who immediately delivered them to M., who placed the same upon record. In an action to redeem, held, that the proposition to J. to redeem was not within the statute of frauds, notwithstanding the attorney had not been authorized in writing by M. to make the same.

3. A principal must adopt the acts of his agent as a whole, and will not be permitted to retain that part which is beneficial, and reject that which is not.

4. A deed of real estate, absolute in form, may be shown by parol to have been intended by the parties to it as a security for a debt or loan, and as between such parties, at least, the instrument will be construed to be a mortgage merely.

5. Held, that the relation of mortgagor and mortgagee was not changed or destroyed by the delivery of the deed on the terms upon which it was obtained, and that the deed was taken as further security for, and not in payment of, the mortgage debt.

6. A court of equity, after ascertaining that a conveyance by absolute deed is a mortgage, will allow a mortgagor, or the person who has acquired his interest in the premises, to redeem.

7. The right to redeem and the right to foreclose are reciprocal, and an action to redeem may be brought at any time before the statutory bar of 10 years is complete.

8. When a mortgagor dies, an action to redeem from a mortgage may be maintained by the person who succeeded, by the mortgagor's death, to his interest in the mortgaged premises.

9. A mortgagee in possession of and occupying mortgaged real estate before foreclosure is liable to account for the net rental value thereof, and this even though the instrument securing the debt is on its face an absolute conveyance.

10. The finding of the amount due the mortgagee for repairs cannot be reviewed, since the evidence upon which the same was based is not contained in the bill of exceptions.

Error to district court, Douglas county; Wakeley, Judge.

Action by Harriet Merriam against John C. Morrow and another to recover title to and possession of land. Pending suit, plaintiff died, and Nora A. Jones, her sole heir at law, was substituted as plaintiff. Judgment was rendered for plaintiff, and defendants bring error. Affirmed.

J. F. Morton and E. R. Duffie, for plaintiffs in error.

Jas. W. Carr, for defendant in error.

NORVAL, C. J.

On or about the 6th day of December, 1877, one Harriet Jones, now deceased, being the owner in fee simple of lot 1, in block 4, in Shull's addition to the city of Omaha, gave her promissory note for the sum of $500 to John C. Morrow, one of the plaintiffs in error, and to secure the payment of said note she, together with her husband, William D. Jones, executed and delivered to said Morrow a mortgage upon said lot. On the 12th day of October, 1880, Morrow commenced an action in the district court of Douglas county to foreclose said mortgage, service of summons being made by publication, and on the 6th day of December, 1880, a decree was entered in said cause for the sum of $625.25 and costs, and the premises were ordered sold for the payment thereof. An order of sale was thereafter issued, and on the 12th day of February, 1881, said real estate was sold to one Lewis S. Reed for $611, that being about $125 less than the amount of the decree, interest, and costs. On February 16, 1881, Morrow, by his attorney, James F. Morton, filed a motion in the said cause to set aside the sale, and on the 19th day of the same month said motion was overruled by the court. Subsequently, on the 21st day of February, 1881, said Morton, who was then, and from the commencement of the suit had been, the attorney of record for the plaintiff therein, without any authority from said Morrow, wrote and transmitted by mail to said Harriet Jones a letter, inclosing therein for execution by her a quitclaim deed for said lot, and a written assignment of the equity of redemption from said Harriet Jones to said Morrow. The following is a copy of said letter: “Omaha, Neb., February 21st, 1881. Harriet Jones--Dear Madam: I am instructed by my client, J. C. Morrow, to write and inform you that on sale in foreclosure of mortgage of your property the same was sold for $611.00 dollars (the appraisement was $530.00 dollars), leaving a deficit on the mortgage and cost of $125.00 dollars, for which we will still have a judgment against you. Since the sale we have concluded to take the property and cancel the judgment if you desire to do so by signing to Mr. Morrow your equity of redemption, and thus enable him to redeem from the purchaser. He also instructs me to say to you that at any time in the future you desire to redeem your property from him you can do so by paying amount of mortgage and costs, with interest. If you desire to avail yourself of this offer you can do so by signing and acknowledge the inclosed assignment of your equity of redemption and quitclaim deed to Morrow. You will acknowledge the same before the clerk of a court of record, and return the same to my address, and I will send you the certificate of cancellation of mortgage. If this is done, it must be done at once, for the sale comes up for confirmation on March 5th, 1881, and after the confirmation of sale, under our statutes, the property can no longer be redeemed, and your equity of redemption is lost to you, or any one else. If you so instruct me, I will have Judge Redick, as your attorney, appear for you in the redemption matter, and we will pay him for his services without expense to you. Be kind enough to answer at once, so we can deposit the money with Judge Redick to redeem the property. I am, with much respect, your ob't serv't, James F. Morton, Att. for J. C. Morrow.” This letter, together with the deed and the assignment of the equity of redemption, were in due time received by Harriet Jones, who accepted the proposition, and on the 28th day of February, 1881, executed and acknowledged the quitclaim deed sent to her for that purpose, returned the same to said Morton, who, upon receipt thereof, delivered the same to said Morrow, who accepted and placed the deed upon record. On February 26, 1881, the purchaser of said lot procured an order to show cause why said sale should not be confirmed, and on March 5, 1881, Morrow filed with the clerk of the district court exceptions to the confirmation; also a receipt, signed by himself, acknowledging full satisfaction of the decree of foreclosure. On the 9th day of said month said Morton, as the attorney for Morrow, wrote and transmitted by mail to said Harriet Jones another letter, acknowledging the receipt of the quitclaim deed, and urging her to execute and return the assignment sent to her with the deed. Upon the receipt of this letter, Mrs. Jones executed the assignment of the equity of redemption which had been previously sent her as aforesaid, and returned the same to Morton, who, immediately upon the receipt thereof, delivered the assignment to Morrow, who filed the same in said cause. Subsequently the motion to confirm the sale was overruled, and the sale set aside, and Morrow, in pursuanceof said agreement, redeemed said lot, and claims to be the owner thereof. Immediately upon receiving the deed and assignment Morrow took possession of the premises, and from thence has exercised control over the same, collecting the rents arising therefrom, and applying the same to his own use. He has also paid for the making of repairs on the premises.

It further appears that said Harriet Jones obtained a divorce from said William D. Jones, and subsequently married one Harvy Merriam; that on the 30th day of October, 1888, and prior to the commencement of this suit, Harriet Merriam, formerly Harriet Jones, tendered to said Morrow, and offered to pay him, the full amount due him on said mortgage, after deducting the amount of rents and profits collected by him in excess of taxes by him paid, and demanded of said Morrow a deed for said lot, who refused to receive the money or to execute a deed as requested. Harriet Merriam, née Jones, thereupon brought this action against John C. Morrow and F. M. Morrow, his wife, to have the deed declared a mortgage, and to redeem the property, and compel said Morrow to execute and deliver to her a deed to said lot. After the beginning of the action the plaintiff died, leaving Nora A. Jones, her daughter, sole and only heir at law, who was a minor over the age of 14 years. Mary A. Elliott is the duly-appointed guardian of said minor, and this action was revived in the name of said Nora A. Jones.

The trial court, upon the issues joined, made a finding that the plaintiff was entitled, and has the right, to redeem the real estate in dispute from the mortgage on payment of such sum or sums as are due on account of the principal and interest of said mortgage, and the costs of foreclosure proceedings, and all repairs and valuable improvements made by said John C. Morrow upon said premises, after deducting all sums received or collected by him as rents for...