Pontiac Imp. Co. v. Leisy

• Decision Date: 05 May 1944
• Docket Number: 31763.
• Citation: 14 N.W.2d 384,144 Neb. 705
• Parties: PONTIAC IMPROVEMENT CO. v. LEISY et al.
• Court: Nebraska Supreme Court

14 N.W.2d 384

144 Neb. 705

PONTIAC IMPROVEMENT CO. v. LEISY et al.

No. 31763.

Supreme Court of Nebraska

May 5, 1944

Syllabus by the Court.

1. Several laws of the state of Ohio, relating to corporations were properly received in evidence under the certificate of the secretary of state of Ohio, and under such laws the plaintiff has perpetual corporate succession.

2. A judgment of the district court becomes a lien against real estate in that county from the time of its entry on the judgment record.

A R. Oleson, of Wisner, for appellant.

Zacek & Nicholson, of Wisner, and John J. Gross and James D Elliott, both of West Point, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, and CHAPPEL, JJ.

PAINE Justice.

This is an equity action for the foreclosure of a real estate mortgage. Decree was duly entered, from which two of the defendants appeal.

On June 17 1925, Harry E. Leisy and wife gave a mortgage to Hugo A. Leisy upon a residence property, being lots 19 and 20, block 28, original town of Wisner, Cuming county, Nebraska, to secure payment of three notes amounting to $10,000 and interest, which mortgage was recorded in Book 44 at page 596. On April 20, 1932, this mortgage was assigned to the plaintiff corporation. On April 1, 1936, an extension agreement was entered into between the assignee corporation and the original mortgagors, extending said mortgage for five years from April 1, 1936, and agreeing that the mortgage has been rerecorded in Book 55 at page 638 of the mortgage records of Cuming county.

In the amended answer of defendant Julius Ludwig he denies that the plaintiff is a corporation, charging that its charter expired in 1939 "and no further provisions have been made to authorize the maintaining of this action." Also charging that he obtained a judgment of $39,882.50 against Irvin O. Leisy and Harry E. Leisy on November 5, 1935, and that execution was returned unsatisfied.

Said defendant further alleges that there was no consideration for the mortgage of $10,000, which was given to a brother of the mortgagor for the sole purpose of hindering, delaying and defrauding his creditors. He further alleges that the extension agreement of said mortgage was executed without consideration, and that in June, 1935, the $10,000 mortgage and note which it was given to secure were barred by the statute of limitations and ceased to be a lien upon the lots involved, and that his judgment became a first lien upon the lots in question, subject only to a tax lien, and prays that he be decreed to have a prior lien to the mortgage of plaintiff.

On April 15, 1942, Oscar R. Thompson and Thomas Thompson filed their amended answer, in which they admit the corporate existence of the plaintiff corporation; admit the filing of all instruments set out in the petition, but allege that none of them have any valid force or effect; admit that defendant Ludwig recovered a judgment as alleged in his answer, but claim that the lien of Ludwig's judgment is inferior to and subject to the lien of a judgment of $13,514.03 which they recovered against Harry E. Leisy, mortgagor, and another on November 5, 1935. They further charge in their answer that the purported mortgage, notes and assignment and extension agreement are all part of an evil plan, device, or scheme, without consideration, to perpetrate a fraud upon existing creditors, especially these answering defendants; that if the notes and mortgage and assignment set up in plaintiff's petition are valid, they are now barred by the statute of limitations, and pray that they be decreed to have a prior lien on the real estate involved superior to the claim of the plaintiff and of other defendants.

On September 10, 1943, the cause came on for trial upon the petition of the plaintiff and the amended answers of defendants. Thereupon defendant Ludwig was granted leave to amend his answer instanter by interlineation to set out that plaintiff corporation had been chartered for 25 years only, and that its charter had expired in 1939.

The plaintiff introduced as exhibits copies of the several statutes of Ohio relating to corporations, being duly authenticated exemplifications of the same under certificate of the secretary of state, together with a certified copy of the original articles of incorporation of the plaintiff company, showing that it was organized May 28, 1914, and was to exist for the term of 25 years.

Plaintiff also offered in evidence five certificates of amendments to the articles, duly certified by the secretary of state. The last amendment to said articles of incorporation was under date of October 15, 1940, raising the stated capital of the corporation from $500,000 to the sum of $1,000,000.

Section 8623-14 of the General Corporation Act of Ohio, in evidence before us, provides that any corporation may alter or amend its articles, and further, in section 8623-15, provides that such "amended articles shall supersede and take the place of the then existing articles of the corporation and all amendments thereto."

An examination of these exhibits shows that in paragraph three of the original articles of incorporation its life was fixed at 25 years, which would end May 28, 1939, but on May 20, 1939, the third paragraph of the said articles was amended in toto by written consent of all the stockholders, and entirely omitting the time of termination of the life of the corporation; that is to say, the new and amended third paragraph of the articles of incorporation established no length of life for the corporation, nor was this referred to in any other paragraph.

Section 8623-7, as set out in exhibit No. 1, provides that "Upon the filing of the articles the incorporators and their associates, successors and assigns by the name stated herein shall, from the date of such filing, be and constitute a body corporate, with perpetual...