Phillips v. Bishop

• Decision Date: 06 May 1891
• Citation: 31 Neb. 853,48 N.W. 1106
• Parties: PHILLIPS v. BISHOP ET AL.
• Court: Nebraska Supreme Court

31 Neb. 853

48 N.W. 1106

PHILLIPS

v.BISHOP ET AL.¹

Supreme Court of Nebraska.

May 6, 1891.

Syllabus by the Court.

Where a mortgage was given by a married man upon several parcels of real property, including the homestead of the mortgagor, upon which he then resided with his family, and the wife of the mortgagor, then occupying the homestead with him, did not acknowledge the mortgage before any officer authorized to take acknowledgment of deeds, in an action brought by an assignee of the said mortgage, held, that the mortgage created no lien upon the homestead.

Appeal from district court, Howard county; TIFFANY, Judge.Paul & Templin and O. A. Abbott, for appellants.

Thompson Bros. and T. T. Bell, for appellee.

COBB, C. J.

This was an action to foreclose a mortgage, brought in the district court of Howard county by Simeon Phillips, plaintiff and appellee, against Isaac C. Bishop, Ida Bishop, the Nebraska Loan & Trust Company, A. G. Kendall, the Chicago Lumber Company, and N. J. Paul, defendants and appellants. N. J. Paul filed an answer and cross-petition, setting up, among other things, the execution and delivery by Isaac C. Bishop and Ida Bishop of a certain mortgage securing the payment of certain notes of Isaac C. Bishop. That said notes were dated on the 10th day of October, 1887,--one payable March 10th, after date, for the sum of $1,000, with 10 per cent. interest per annum from maturity until due from the 10th day of March, 1889, the amount due thereon being the sum of $600.33; and the other of said notes for the sum of $4,500, due and payable March 10, 1888, with interest at the rate of 10 per cent. per annum from maturity until paid, upon which note the sum due on the said 10th day of March, 1889, was $4,950. That for the purpose of securing the payment of the two said promissory notes and the interest thereon as it should mature, the said Isaac C. Bishop and Ida Bishop executed and delivered to A. G. Kendall, this defendant's assignor, a certain mortgage deed on the S. W. 1/4 of section 32, township 15 N., of range 10, and the S. W. 1/4 of section 29, township 15, range 10 W. of the sixth P. M., all in Howard county, Neb., including in said mortgage all rights of homestead of the said Ida Bishop in and to said premises upon the condition that the said notes aforesaid should be paid according to the tenor thereof. That said mortgage was duly acknowledged before W. L. Thompson, a notary public in and for Howard county, Neb., and after such acknowledgment said mortgage and notes secured by the same were delivered by the said I. C. Bishop and Ida Bishop to the said A. G. Kendall. That said mortgage was duly recorded on the 11th day of October, 1887, in Book of Mortgages M, on page 258 of the records of Howard county, Neb. That no action, at law or otherwise, had been brought for the recovery of the amount due on said notes and mortgage, nor had the debt or any part thereof been collected or paid. The prayer of said cross-petition was that said I. C. Bishop and Ida Bishop be required to answer the said cross-petition, and that the equity of redemption of the said defendants I. C. Bishop and Ida Bishop in and to the said S. W. 1/4 section 32, township 15, range 10, and the S. W. 1/4 of section 29, township 15, range 10, be forever barred and foreclosed, and that this defendant have an order for the payment of this defendant's said mortgage debt out of any surplus that may remain after the sale of said mortgaged property, after paying the costs of this action and the mortgage of plaintiff, and for a deficiency judgment against Isaac C. Bishop upon the said notes aforesaid, and for such other full and complete relief in the premises as equity and good conscience require. Afterwards, on the 15th day of January, 1890, I. C. Bishop filed an answer to the cross-petition of N. J. Paul as follows, to-wit: Denies that he is indebted to the said N. J. Paul in the sum of $600 on the first cause of action set up in the cross-petition of N. J. Paul and the sum of $4,950 as mentioned in said second count, or either of the said claims as claimed in said cross-petition, or in any other sum or amount; denies that said mortgage was executed, signed, acknowledged, and witnessed by these defendants as in said cross-petition mentioned; denies that said Ida Bishop ever acknowledged the said mortgage, either before the said W. L. Thompson or any other notary public or officer authorized to take acknowledgments, either as mentioned in said petition of said Paul or otherwise, either jointly with this defendant or separately; denies they ever signed the same in the presence of C. H. Paul, or that the said last-named Paul ever witnessed or saw her sign her name thereto, and was never requested to do so; denies that the said Ida Bishop ever received or had any consideration for the signing of said mortgage; that in truth and in fact she did not and was not to receive any consideration for the signing of said mortgage; denies she ever went before the said W. L. Thompson, notary public, and declared the signing of the said mortgage to be her act or deed, or that she was requested so to do by the said Kendall or any other person, or that she was in the presence of the said notary public when the said pretended certificate of acknowledgment was made by said notary public, or that the same was made at her request, instance, or procurement, in any manner. For further answer this defendant denies that said N. J. Paul purchased the said notes, or either of them, as stated in said cross-petition or otherwise, before due or at any other time; denies that the said Paul is the owner thereof; denies that the said Paul is the real party in interest in the causes of action set up in this cross-petition, or either of them, or has been. And for further answer to the said cross-petition this defendant states that he, the said Isaac C. Bishop, and Ida Bishop are husband and wife, and have been for the last 16 years; that the issue of said marriage are six children; that in the spring of 1874 said I. C. Bishop entered the S. W. 1/4 section 32, 15, 10, as a homestead under the homestead laws of the United States; that ever since the said time the said I. C. Bishop and Ida Bishop, with their family, have resided upon and cultivated the said 160 acres of land as their homestead, and did at the time said mortgage was and is dated and claimed to have been executed and acknowledged, have owned and claimed the same as such homestead ever since the said entry of 1874, and have not had or occupied any other; that the same is not within the corporate limits of any town, village, or city, or was not at the date of the said pretended mortgage or acknowledgment, and was not or is not of the value of over $2,000, over and above the mortgages which were unpaid and are legal binding liens on said homestead at the date of the said mortgage and pretended acknowledgment; that said mortgage in the said cross-petition mentioned is null and void, is a cloud on said described land, and especially on the said homestead; that these defendants have no adequate remedy at law to remove the same. Further answering, defendant I. C. Bishop states that on the 10th day of October, 1887, and during all the years 1887, 1886, 1885, and at all of the times hereinafter mentioned, the St. Paul National Bank, mentioned in said cross petition and in the notes therein described, was and is a corporation duly organized and doing a general banking business in the city of St. Paul, Howard county, Neb., under the banking laws of the United States; that during all the times aforesaid the said A. G. Kendall was a stockholder and cashier of the said bank, and said N. J. Paul and A. C. Rowell stockholders and officers of said bank, and the said I. C. Bishop was not in any manner indebted to either the said Kendall, Paul, or Rowell, but was indebted to the said bank; that said notes were made payable to the said Kendall and Rowell at the request of said bank officers for the convenience of said bank, by and with the consent and connivance of the payee in each of the notes hereinbefore or hereafter mentioned, for the use and benefit of said bank, and was now held by the said Paul for the use and benefit of said bank, and are the property of said bank, and for the purpose of evading the bank laws of the United States, and against receiving and contracting for illegal and usurious interest under the laws of the United States and this state, and for no other or different purpose, and to which said N. J. Paul has had full knowledge thereof. Admits that the defendant I. C. Bishop made payments of said notes in question, that he signed the notes, and acknowledged the mortgage in said petition mentioned; that the said notes were for the balance claimed by said bank to be due and owing them from this defendant, to-wit, for usurious interest and money borrowed and advanced by the said bank to this defendant as hereinafter stated. Said answer then details a large number of payments claimed to have been made under the usurious...