Pochin v. Conley
| Decision Date | 20 September 1905 |
| Docket Number | 13,893 |
| Citation | 104 N.W. 878,74 Neb. 429 |
| Parties | WILLIAM POCHIN, APPELLEE, v. FRANK N. CONLEY ET AL., APPELLEES, v. IMPLEADED WITH E. JAKWAY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Custer county: BRUNO O HOSTETLER, JUDGE. Affirmed.
AFFIRMED.
R. A Moore, for appellant.
C. L Gutterson, Charles H. Holcomb and Moore & Ledwich, contra.
ALBERT, C., not sitting.
Nels Anderson, one of the defendants, purchased 160 acres of land in Custer county from one Mary G. Thornburg in June, 1892, for $ 1,600. At that time there was an $ 800 mortgage on the land in favor of the Globe Investment Company, which mortgage was deducted from the purchase price. Anderson paid Mrs. Thornburg $ 500 in cash and gave a second mortgage on the land for $ 300 to secure the balance of the purchase money. The $ 800 mortgage given to the Globe Investment Company was transferred to William Pochin, who commenced foreclosure proceedings thereon and obtained a decree on December 3, 1896. The $ 300 mortgage given to Mrs. Thornburg was by her transferred to the appellant, Mrs. Jakway, who was made a party defendant in the foreclosure action commenced by Pochin. The decree found that there was due on the mortgage held by Pochin $ 946.66, and on the mortgage held by Mrs. Jakway, $ 391.50. An order of sale issued on this decree and the land was sold in June, 1898, and the premises bought in by William Pochin, plaintiff in the action, for $ 600. The proceeds of the sale being insufficient to satisfy the decree in favor of Pochin, of course there was nothing to apply on the second lien of Mrs. Jakway. This sale was confirmed by an order of the district court entered on June 21, 1898, and the sheriff ordered to make a deed to the plaintiff, Pochin. The sheriff's deed was made October 29, 1898. On July 24, 1903, Mrs. Jakway filed in the district court for Custer county what is termed an "application for judgment and supplemental answer"; this paper being entitled the same as the foreclosure proceedings commenced by Pochin. In this application and supplemental answer Mrs. Jakway alleges all of the matters above set out, and states further that, the Pochin mortgage having been deducted from the purchase price of the land at the time Nels Anderson bought from Mrs. Thornburg, he was in duty bound to pay the same; that he and his wife, Clara Anderson, for the purpose of defeating the mortgage held by Mrs. Jakway and depriving her of her security, permitted Pochin to foreclose his mortgage, and after the decree and sale, but before the making of the sheriff's deed, Mrs. Anderson took from him a quitclaim deed, which, it is alleged, amounts to nothing more than a redemption from the sale. The prayer is that personal judgment may be entered against both Nels and Clara Anderson for the amount found due her by the decree in the Pochin foreclosure, and that the judgment be made a special lien upon the mortgaged premises. Both Nels and Clara Anderson filed answers, and by a lengthy reply filed by Mrs. Jakway the facts are set out more in detail; the theory being that, Mrs. Anderson having joined with her husband in the mortgage given to Mrs. Thornburg, she is now estopped by the covenants therein from setting up title to the land as against that mortgage. It is further claimed that the money paid Pochin for the quitclaim deed was principally furnished by Nels Anderson, and that he is the equitable owner of the land. A decree went in favor of the Andersons, and Mrs. Jakway has brought the case here by appeal.
Among other defenses interposed by the...
To continue reading
Request your trial