Peterson v. Winkelmann

• Decision Date: 25 June 1926
• Docket Number: 25091
• Parties: VAN E. PETERSON, RECEIVER OF FARMERS STATE BANK OF CULBERTSON, APPELLEE, v. MARY S. WINKELMANN, APPELLANT
• Court: Nebraska Supreme Court

209 N.W. 499

114 Neb. 714

VAN E. PETERSON, RECEIVER OF FARMERS STATE BANK OF CULBERTSON, APPELLEE, v. MARY S. WINKELMANN, APPELLANT

No. 25091

Supreme Court of Nebraska

June 25, 1926

APPEAL from the district court for Hitchcock county: CHARLES E ELDRED, JUDGE. Affirmed.

AFFIRMED.

J. F Ratcliff and Scott & Scott, for appellant.

Butler & James, contra.

Heard before MORRISSEY, C.J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

DEAN J.

The Farmers State Bank of Culbertson, Nebraska, hereinafter called the bank, became financially embarrassed and was taken over by Van E. Peterson, secretary of the guaranty fund commission. December 10, 1924, Peterson, as receiver of the bank, began an action in the district court, in and for Hitchcock county, to close up the bank's affairs. November 8, 1923, Henry W. Winkelmann, cashier of the bank, admitted the shortage of $ 23,480.04 in his account as cashier. This is disclosed by the following instrument which is signed by Winkelmann:

"Whereas, an examination of the affairs of the Farmers State Bank of Culbertson, Nebraska, has disclosed a shortage of $ 23,480.04 in the assets of said bank; and

"Whereas, until the day of the date hereof the undersigned, H. W. Winkelmann, has been cashier of said bank; and

"Whereas, the said H. W. Winkelmann acknowledges said shortage and has promised and agreed to and with the said bank to pay and make good to said bank a portion thereof, amounting to the sum of $ 10,000; and

"Whereas, the said bank has agreed to accept the note of the said H. W. Winkelmann in the sum of $ 10,000 as evidence thereof, and certain assignments, conveyances and payments, herein specified, as security for the payment and in payment of said portion of such shortage, such assignments, conveyances and payments being described as follows:

"A warranty deed to lots 244, 245 and 246 in the town of Culbertson, Hitchcock county, Nebraska, for the consideration of $ 7,500. A certain Maxwell sedan for the consideration of $ 500. Cash in the sum of $ 1,500. An assignment of a certain insurance policy on the life of the said H. W. Winkelmann from the surrender value of which the sum of $ 500 is to be realized and paid, as hereinafter set forth, or, in lieu thereof, the sum of $ 500 in cash.

"Whereas, it is the desire of the said H. W. Winkelmann to make full payment of and restitution to the said bank for said portion of said shortage, and it is conceded by him that the property hereinbefore described may not realize the full amount of $ 10,000:

"Now, therefore, for and in consideration of the premises, and for and in consideration of the acceptance by the said bank, contingently, as herein set forth, of said assignments, conveyances and payments, it is understood and agreed that the said H. W. Winkelman, in the event the property so as aforesaid assigned, conveyed and paid to the said bank by him shall not realize the full amount of the portion of said shortage agreed to be paid by the said H. W. Winkelmann, to wit, the said sum of $ 10,000, that the said H. W. Winkelmann has herein agreed to pay and make good, the said H. W. Winkelmann shall not be released from his obligation to pay any deficiency that may remain, but shall continue liable therefor until such deficiency shall be fully discharged by payment.

"The said H. W. Winkelmann agrees, so far as the payment to be made from the proceeds of the insurance policy hereinbefore mentioned, to do all things that may be necessary to realize thereon, and when such amount is received or collected by him, or when it is otherwise secured, to pay the same, forthwith, to the said bank."

"Dated this 8th day of November, 1923.

"(Signed) H. W. Winkelmann."

"Witness: John F. Cordeal."

Mary S Winkelmann is the wife of Henry W. Winkelmann and, on and before November 8, 1923, she was the owner of the real estate in Culbertson which is described in the foregoing instrument. Pursuant to the obligation, Winkelmann joined with his wife in executing and delivering a warranty deed to the real estate above referred to. This deed was delivered to and accepted by the bank as security for that part of the bank shortage for which Winkelmann desired to make restitution, and which he agreed to make good to the bank. In this suit the warranty deed was treated as a mortgage and, plaintiff having prevailed, it was foreclosed and a judgment was rendered wherein the court found and decreed "that plaintiff has a good and valid lien by virtue of the deed set forth in his petition in the nature of a mortgage to secure payment of $ 7,500," with 7 per cent. interest per annum from the...