Plummer v. Park

• Decision Date: 16 October 1901
• Docket Number: 10,096
• Citation: 87 N.W. 534,62 Neb. 665
• Parties: MARION PLUMMER, APPELLEE, v. BARTON PARK, APPELLEE, IMPLEADED WITH EDMOND BONNEAU ET AL., APPELLANTS
• Court: Nebraska Supreme Court

87 N.W. 534

62 Neb. 665

MARION PLUMMER, APPELLEE, v. BARTON PARK, APPELLEE, IMPLEADED WITH EDMOND BONNEAU ET AL., APPELLANTS

No. 10,096

Supreme Court of Nebraska

October 16, 1901

APPEAL from the district court for Burt county. Heard below before FAWCETT, J. Reversed.

REVERSED AND REMANDED.

H. H Bowes, Willis G. Sears and R. Wade Gillis, for appellants.

M. R Hopewell and John A. Singhaus, contra.

OPINION

SULLIVAN, J.

This action was instituted by Marion Plummer against Barton Park Edmond Bonneau, and others to foreclose a real estate mortgage. The court, upon the issues joined, found in favor of the plaintiff and awarded him the relief for which he prayed. There was also a decree in favor of the defendant Park foreclosing a second mortgage upon the land described in the petition. The two decrees were rendered at the same term of court, but not upon the same day. This appeal is prosecuted by Bonneau. His objections to the decree foreclosing the senior lien will be first considered. They are (1) that the evidence does not establish plaintiff's ownership of the mortgage; and (2) that the evidence does not tend to prove that no legal proceedings had been commenced to recover the mortgage debt. It appears from the record that the mortgage was given to one S. P. Byram who died intestate before this action was begun; that H. D. Byram, as administrator of the estate of the deceased, transferred the mortgage to G. M. Byram who sold and assigned it to the plaintiff; that the transfer by the administrator to G. M. Byram had the sanction and approval of all the heirs of S. P. Byram, but was made without any order of distribution having been entered by the county court of Burt county, the court in which the estate was being administered; that G. M. Byram was one of the heirs of S. P. Byram, and that while this action was pending the county court of Burt county ratified and confirmed the transfer made by the administrator. It also appears that there are no creditors of S. P. Byram's estate. Possession of the note and mortgage was evidence of ownership. Collins v. Gilbert, 94 U.S. 753, 24 L.Ed. 170; Jackson v. Love, 82 N.C. 405; Perot v. Cooper, 17 Colo. 80, 28 P. 391; Rubey v. Culbertson, 35 Iowa 264; Commercial Bank v. Burgwyn, 108 N.C. 62, 12 S.E. 952; Somervail v. Gillies, 31 Wis. 152. But it is insisted by counsel for appellant that the administrator could not, without an order of the county court, transfer the title to property which he held in trust. But who can question the transfer? Not the heirs of S. P. Byram, for they consented to it under circumstances that make their consent irrevocable; and not the creditors of the estate, for there are none. In Stanley v. Mather, 31 F. 860, Gresham, J., discussing a question identical in substance with the one now before us, said: "It does not follow because the administrator is the proper party to collect the debts due a decedent, and pay creditors, and for that purpose bring suits, that under no circumstances can the heirs at law maintain a suit to collect a debt which has not been collected by the personal representative. Having paid all creditors, and all expenses of administration, the administrators delivered the notes and mortgages to the complainants, the only persons entitled to them in equity; and there is no reason why their possession should now be disturbed." The plaintiff was entitled to foreclose the mortgage because he was not only the equitable, but also the legal owner of it. The action of the county court confirming and approving the transfer by the administrator to G. M. Byram related back to the time the transfer was made; it had all the force and effect of a prior authorization. Johnston v. Milwaukee & Wyoming Investment Co., 49 Neb. 68, 68 N.W. 383.

The second objection to the decree,...