Plummer v. Park

• Decision Date: 16 October 1901
• Citation: 87 N.W. 534,62 Neb. 665
• Parties: PLUMMER v. PARK ET AL.
• Court: Nebraska Supreme Court

62 Neb. 665

87 N.W. 534

PLUMMER

v.PARK ET AL.

Supreme Court of Nebraska.

Oct. 16, 1901.

Syllabus by the Court.

1. Where there are no creditors of an estate, and the heirs are competent to, and do, consent to the transfer, by the administrator, of a mortgage belonging to the estate, to one of the heirs in part satisfaction of his share of the estate, and such transfer is afterwards ratified by the court in which the estate is being administered, such ratification relates back to the transfer, and is equivalent to a prior authorization, and such heir or his assignee may sue in his own name to foreclose the mortgage.

2. In a suit to foreclose a real estate mortgage, the allegation that no action at law has been brought to recover the mortgage debt must be proved if it is not admitted.

3. A stipulation in a mortgage authorizing the mortgagee to accelerate the maturity of the mortgage debt if the taxes on the mortgaged premises are not paid at or before the time they become delinquent is not forbidden by statute, nor contrary to public policy, and may be enforced.

4. And the payment of such delinquent taxes after the commencement of an action to foreclose the mortgage does not deprive the mortgagee of the right secured by the exercise of his option.

5. The rendition of two decrees in a case at the same term, but not on the same day, is not reversible error, if the rights of the litigants have been correctly determined.

Appeal from district court, Burt county; Fawcett, Judge.

Action by Marion Plummer against Barton Park and others. Judgment for plaintiff, and Harriett B. Park and others appeal. Reversed.H. H. Bowes, W. G. Sears, and H. Wade Gillis, for appellants.

M. R. Hopewell and John A. Singhaus, for appellee.

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, forclosing 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, 33 Am. Rep. 685;Perot v. Cooper, 17 Colo. 80, 28 Pac. 391, 31 Am. St. Rep. 258;Rubey v. Culbertson, 35 Iowa, 264;Bank v. Burgwyn, 108 N. C. 62, 12 S. E. 952, 23 Am. St. Rep. 49;Somervail v. Gillies, 31 Wis. 152); but it is insisted by counsel for appellants 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 (C. C.) 31 Fed. 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...