Nebraska Loan & Trust Co. v. Haskell

• Decision Date: 04 March 1903
• Citation: 4 Neb. [Unof.] 330,93 N.W. 1045
• Parties: NEBRASKA LOAN & TRUST CO. v. HASKELL ET AL.
• Court: Nebraska Supreme Court

4 Neb. [Unof.] 330

93 N.W. 1045

NEBRASKA LOAN & TRUST CO.

v.HASKELL ET AL.

Supreme Court of Nebraska.

March 4, 1903.

Commissioners' opinion. Department No. 2. Appeal from district court, Valley county; Thompson, Judge.

“Not to be officially reported.”

Action by the Nebraska Loan & Trust Company against Orson S. Haskell and others. Judgment for defendants, and plaintiff appeals. Reversed.John M. Ragan and R. L. Staple, for appellant.

Hall & Johnson, M. B. Reese, and H. A. Reese, for appellees.

POUND, C.

Haskell, one of the appellees, hereinafter styled the mortgagor, executed and delivered to the appellant, hereinafter styled the mortgagee, two mortgages upon the land in controversy, one to secure a principal note and ten coupon notes for installments of interest, and one to secure ten notes for installments of the remainder of the interest rate agreed on, which were to cover the commissions of the mortgagee. After maturity of the principal note, five of the interest coupons and five of the commission notes remaining unpaid, the mortgagee, which owned and held all the notes, brought a suit to foreclose the mortgages as to the interest coupons and commission notes only. It alleged in its petition that it owned the principal note, that the principal note was past due, and that it did not desire to foreclose said mortgages as to said note, but only as to said coupons. It prayed that the mortgage securing the commission notes be foreclosed, and that the first mortgage securing the principal note and interest coupons be foreclosed as to the interest coupons only, subject to the principal note and interest thereon from its maturity. Personal service having been had, and the court having acquired jurisdiction, a decree was rendered as prayed for, finding the amount due on the commission notes and interest coupons, finding such amount a lien on the property, subject to the amount due on the principal note, which was decreed to be a first lien, and ordering the property sold for satisfaction of the amount due on said coupons, subject to the first lien of said principal note and the mortgage so far as it secured the same. A stay was taken, and afterwards, before sale, the mortgagor paid the amount of the decree and redeemed therefrom. Subsequently he sold his interest to the appellees, Munn and Hall. The present suit was brought to foreclose the first mortgage for satisfaction of the amount due on the principal note. Munn and Hall answered, setting up the facts as to the first foreclosure, and claiming that the lien of the mortgage was extinguished thereby. The district court took this view, and dismissed the suit. The case is not within the purview of sections 856-861, Code Civ. Proc., since the whole indebtedness secured by the mortgage was due and was held by the mortgagee at the date of the first foreclosure. In cases not covered by those sections, we may concede that if a mortgage is foreclosed as to a portion of the debt secured, all being due, and all the mortgaged property is sold, third persons are justified in believing that the remainder has been paid, and the lien of the mortgage is terminated as to creditors and purchasers under the foreclosure sale. Rains v. Mann, 68 Ill. 264;Anderson v. Anderson, 129 Ind. 573, 29 N. E. 35, 28 Am. St. Rep. 211;Escher v. Simmons, 54 Iowa, 269, 6 N. W. 274;Buford v. Smith, 7 Mo. 489;Vieno v. Gibson (Tex. Civ. App.) 20 S. W. 717. But it is equally true that, if on foreclosure as to a portion or an installment the mortgagor redeems before sale under the decree, it is as if there had been no foreclosure, and foreclosure may be had, and the land may be sold subsequently for satisfaction of the other installments. Standish v. Vosberg, 27 Minn. 175, 6 N. W. 489;Dupee v. Salt Lake Valley Loan & Trust Co. (Utah) 57 Pac. 845, 77 Am. St. Rep. 902; 2 Jones, Mortgages, sec. 1459. Hence appellees must rely upon the technical rule as to splitting causes of action. This court has said that “a party seeking to enforce a claim, legal or equitable, must present to the court all the grounds upon which he expects judgment...