Nat'l Life Ins. Co. v. Robinson

• Decision Date: 31 January 1879
• Citation: 8 Neb. 452,1 N.W. 124
• Parties: NATIONAL LIFE INSURANCE CO., PLAINTIFF IN ERROR, v. JENNIE L. ROBINSON, ADMINISTRATRIX, DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

8 Neb. 452

1 N.W. 124

NATIONAL LIFE INSURANCE CO., PLAINTIFF IN ERROR,

v.JENNIE L. ROBINSON, ADMINISTRATRIX, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

January Term, 1879.

Appeal from Lancaster County.

Montgomery & Son, for plaintiff.

Mason & Wheton, for defendant.

COBB, J.

--This action is for the foreclosure of a mortgage executed by Andrew J. Cropsey and wife to the Republic Life Insurance Company, and by said company assigned to the plaintiff. The defendants other than Cropsey and wife are sued as subsequent lien holders upon the mortgaged premises. One only of them, Seth Robinson, answered. His answer after first denying all knowledge or information as to the plaintiff's cause of action, denies all the facts stated in the petition, except as to his lien. Robinson's death was afterwards suggested, and the cause revived in the name of Jennie L. Robinson, administratrix. The cause was referred to a special referee, to find issues of fact and of law. The referee made his report, in and by which he found as a matter of fact, that the mortgage described in the petition was duly executed, witnessed, acknowledged and recorded in the office of the county clerk of said county, long prior to the obtaining of the judgment of said Robinson, and there is still due and unpaid on said note and mortgage the sum of $825, and interest thereon from the 12th day of July, 1877; that the note was delivered at the date for the amount, and to mature at the time and at the rate of interest as set forth in the petition. That the said Republic Insurance Company duly assigned said note to the plaintiff, and also assigned the mortgage to the plaintiff; that at the time of bringing this suit, the said note and mortgage were in the possession of the plaintiff; that the privilege of becoming incorporated by said plaintiff was granted by a law of congress passed July 25, 1868, but that before in fact they could become a corporation, directors must be chosen, capital stock must be subscribed, and an acceptance of such privileges so granted. Such act of congress empowered such corporation to sue and be sued, plead and be impleaded in the district and circuit courts of the United States, in the District of Columbia and elsewhere; that at the May term, 1877, of this court, Seth Robinson recovered a judgment against said defendant Cropsey, for the sum of $75, which said judgment is still unpaid, and the referee aforesaid finds the following conclusions of law:

First. That there is due on the judgment of Robinson, the sum of $85.50, and that the same is a lien on the lands mentioned in the plaintiff's petition; and that there is due on the note and mortgage of the said plaintiff the sum of $921.25, and that the same is not a lien, as against the claim of defendant Robinson, on the lands mentioned in the petition, but is a second lien thereon.

Second. That the said plaintiff, if a corporation, is empowered to maintain this action regardless of the...