Reeves v. Wilcox

• Citation: 53 N.W. 978,35 Neb. 779
• Parties: REEVES v. WILCOX ET AL.
• Decision Date: 16 December 1892
• Court: Supreme Court of Nebraska

35 Neb. 779

53 N.W. 978

REEVES

v.WILCOX ET AL.

Supreme Court of Nebraska.

Dec. 16, 1892.

Syllabus by the Court.

Three persons jointly purchased three lots in an addition to the city of Lincoln for $3,000, one fourth cash in hand, and the balance on credit. By agreement the title was taken in the name of W., one of the purchasers, and he was to give his note, secured by mortgage on the lots, for the unpaid purchase money, and these were accepted by the vendor. Held, there being no trust relations involved, and neither fraud, accident, nor mistake, that the vendor was restricted to the security thus taken, and could not recover a deficiency judgment against the purchasers who did not sign the note.

Appeal from district court, Lancaster county; FIELD, Judge.

Petition by Lizzie Reeves against Edward M. Wilcox and others for the foreclosure of a mortgage. From the decree entered plaintiff appeals. Affirmed.Thomas Ryan, for appellant.

Davis & Hibner and C. Thompson, for appellees.

MAXWELL, C. J.

This is an action to foreclose a mortgage, and to recover a deficiency judgment against the defendants Curtis and McCarger. The testimony tends to show that Frank D. Reeves, in his lifetime, jointly with one Fred A. Hovey, owned lots 17, 18, and 19 in Woolworth's addition to Lincoln, and defendant Wilcox was their agent for the sale of said lots; that Wilcox, while acting as such agent, went to appellees Curtis and McCarger, and represented that he could make some money on the lots in question if he could raise the cash payment,--$750. The property was exhibited and price stated, after which the parties went to the office of Reeves, and there concluded a bargain, by which Wilcox took a deed from Reeves (who held the legal title) to himself, not as trustee, but in his individual capacity. The appellees each agreed to contribute, and did contribute, one third, or $250, of the cash payment; and Wilcox, by and with the consent of all the parties to the transaction, and as one of the conditions on which the sale was concluded, having taken the deed for that purpose, gave his note for the balance, $2,250, secured by a first mortgage on the premises purchased. There was an understanding between Wilcox, McCarger, and Curtis to the effect that the property should be marketed, and each receive one third of the profits, memorandum of which was at some time made in writing, but to which neither Reeves nor Hovey were parties in any way. No sale was made, and no profits accrued, and the notes given by Wilcox were not paid. Foreclosure proceedings were commenced against Wilcox, Curtis, and McCarger. McCarger, appellee herein, defendant therein, filed a separate demurrer to the petition, which was overruled, and he then answered denying the alleged oral contract, disclaiming any interest in the property,...