Nelson v. Atkinson

• Decision Date: 20 September 1893
• Citation: 37 Neb. 577,56 N.W. 313
• Parties: NELSON v. ATKINSON ET AL.
• Court: Nebraska Supreme Court

37 Neb. 577

56 N.W. 313

NELSON

v.ATKINSON ET AL.

Supreme Court of Nebraska.

Sept. 20, 1893.

Syllabus by the Court.

Where a conveyance of property is shown, by the contemporaneous written contract of the parties thereto, to have been intended solely as security for the payment of money, or as indemnity against liability, such conveyance, as between said parties, must be treated as, and in fact is, a mere mortgage.

Commissioners' decision. Appeal from district court, Lancaster county; Hall, Judge.

Action by Hannah A. Nelson against Charles A. Atkinson and John L. Doty for an accounting and other relief. Defendants had judgment, and plaintiff appeals. Reversed.R. Cunningham, for appellant.

Atkinson & Doty, pro se.

RYAN, C.

Most of the necessary facts for a determination of this controversy will sufficiently appear by the article of agreement made November 12, 1888, which is as follows: “Article of agreement made this 12th day of November, 1888, by and between C. A. Atkinson and J. L. Doty, parties of the first part, and H. A. Nelson, party of the second part, witnesseth, whereas said party of the second part has employed said first parties as her attorneys to bring, conduct, and prosecute on her behalf an action against Jasper L. Nelson and W. B. Howard; and whereas it is necessary in said action for said party of the second part to give a bond, and said first parties have agreed to go on said bond, or secure one to go on said bond; and whereas, in order to secure and indemnify said first parties against loss or damage by reason of the giving of said bond, and to secure to said first parties the paymentof their fees in and about the bringing, conducting, and prosecuting of said action, the said H. A. Nelson has this day conveyed by warranty deed to said first parties the following described real estate, situate in Lancaster county, Nebraska, to wit: Lot number one (1) and two, (2,) in block ten, (10,) in Yolande Place addition to the city of Lincoln: Now, therefore, the said H. A. Nelson hereby agrees to pay to said first parties their fees in said action, and also to pay all costs and damages that may be adjudged against her in said action, and to hold said first parties harmless from any and all damages by reason of the giving of said bond, and the said first parties hereby agree to and with the said second party that in case said second party shall, within one year from the date hereof, pay to the said first parties their fees in and about said action, and shall fully and completely release and have said first parties discharged from all liability on said bond within one year from the date hereof, then, and in that case, the said first parties hereby agree to convey to said second party the premises above described. In case said second party shall...