Reynolds v. Dietz
| Decision Date | 06 February 1894 |
| Docket Number | 3968 |
| Citation | 58 N.W. 89,39 Neb. 180 |
| Parties | LOUIS P. REYNOLDS, APPELLEE, v. GOULD P. DIETZ ET AL., IMPLEADED WITH HARRISON BOSTWICK, APPELLANT |
| Court | Nebraska Supreme Court |
REHEARING of case reported in 34 Neb. 265.
AFFIRMED.
M. A Hartigan, for appellant.
J. B Cessna, W. P. McCreary, Capps, McCreary & Stevens, and Talbot & Bryan, for appellees.
There was filed in this case an opinion which was reported in 34 Neb. 265, 51 N.W. 747, et seq. Subsequently a rehearing was granted, and the case fully reargued and again submitted for the determination of this court. The history of the transactions out of which it arose is correctly given in the already reported opinion, and need not now be reiterated. Upon a careful examination of the evidence in connection with the pleadings, we are satisfied that some very material, and, indeed, essential, facts have been overlooked. Of this nature is this statement in the opinion referred to: "In the case at bar the proof clearly shows that the cestuis que trust named each purchaser and paid for one-tenth portion of the land and agreed to pay the mortgage as a part of the consideration." As to the agreement of the cestuis que trust to pay the mortgage as a part of the consideration, the only affirmative evidence was given by H. Bostwick. He said that the receipts given by him to the cestuis que trust were uniform each with the other; that the aggregate amount of the receipts was paid as part of the consideration for the deed to himself as trustee; that the property was bought subject to a mortgage of $ 8,600, and that each party then agreed to assume his part of the existing mortgage; that the property was put in at $ 20,000, subject to a mortgage of $ 8,600 and interest, each party paying his share of the balance in cash. On his cross-examination Mr. Bostwick testified as follows:
Q. These receipts were all the written articles you had between these other parties?
A. No, sir; I had a written agreement, and it ought to be in existence to-day, signed by all of them, stating the description of the property, amount of purchase money and the mortgage, and corroborating me as trustee, and everything in it the same as in the receipts, only more fully set out. It was signed by every one here and by Mr. Halter for the Lincoln parties. I have looked for it but cannot find it. I have looked everywhere it is possible for it to be. It is possible that a contract of that kind was drawn and signed at the time the bill was made.
Q. The receipts therein date from the 10th to the 16th?
A. Yes, sir.
Q. And the deed was recorded on the 20th. Now where was the money paid?
A. Well, it was paid right here, but some of the Lincoln parties held some papers. All payments were made right here and the whole deal was fixed up here. I had never met the Lincoln parties; I think I met Mr. Hyde, and I did it all through Mr. Halter for them. He gave a check for the money for them. I think he gave a check for four of them at the same time.
Q. These receipts stated all agreements as far as it stated anything at the time?
A. Yes, sir.
Q. You are the one that was arranging in getting up the syndicate, were you?
A. Yes, sir.
Q. In this agreement they all agreed to assume their proportionate share of the mortgage?
A. Yes, sir.
Q. The mortgage was part of the purchase money to be paid subsequently?
A. Yes, sir.
Q. If the land was not sold?
A. Yes, sir.
Q. Will you swear that you went into all these details?
A. Yes, sir; it was stated in this way in the contract. Now to refer to another deal, the contract drawn out here (pointing to the east part of the city), it was for each one to pay such a share and then to assume any outstanding incumbrance. This was drawn up in the same way. The article set out that they took the property at so much and assumed a mortgage for so much, and went on that way.
In contradiction of this evidence James C. Kay testified as follows:
Q. Have you the original memoranda made at the time you purchased your interest in June, 1887?
A. Yes, sir (producing check marked Exhibit J).
Q. What is that?
A. A check on the bank that I gave for the $ 140.
Q. Who drew that check up?
A. Mr. Bostwick.
Q. Did you sign any other paper?
A. No, sir.
Q. Did you sign any such paper or agreement as has been referred to in the testimony of Mr. Bostwick?
A. I don't remember anything of the kind.
W. H. Fuller testified as follows:
Q. You heard the testimony of Mr. Bostwick?
A. Yes, sir.
Q. State to the court when, if ever, you signed the written agreement giving authority to him as he has testified to.
A. I never signed any.
Joseph Boehmer testified:
Q. You heard the testimony of Mr. Bostwick?
A. Yes, sir.
Q. Did you ever sign any such agreement as he refers to?
A. No, sir.
Q. State if you ever had any conversation about such an agreement.
A. Mr. Halter said he had such an agreement, but that he would not sign it for himself, nor would be for any other.
Q. Where was that conversation?
A. In the bank at Lincoln.
Q. Did you act for Mr. Brotherton?
A. Yes, sir.
Q. Did you ever authorize any one to sign any such instrument for Mr. Brotherton?
A. No, sir.
The receipts referred to by Mr. Bostwick mutatis mutandis were in the following language:
"No. .
JUNE 18, 1887.
So far as any written instrument shows, there was no undertaking on the part of the cestuis que trust, personally, to pay the mortgage upon the property purchased. The evidence of Mr. Bostwick of a written agreement having been signed by all the parties, weakened as it was by his failure to produce or account for the absence of that very material writing, moreover, was flatly contradicted upon this very material point. It can scarcely escape notice that the petition made no reference to an express undertaking of the cestuis que trust to pay the mortgage, either written or otherwise. The averment nearest approaching this was "that the deed was taken by H. Bostwick for the cestuis que trust named and was made to H. Bostwick, and at the special instance and request of the said cestuis que trust, the other defendants aforesaid, the said H. Bostwick agreed and assumed to pay this mortgage of $ 8,600 to the plaintiff aforesaid; that by said deed, and the acceptance thereof, the said H. Bostwick and the cestuis que trust, defendants aforesaid, did assume and become personally responsible for the payment of said mortgage," etc. The evidence of Mr. Bostwick was therefore not merely contradicted, but was entirely irrelevant to the averments of the petition; for in the petition no claim was made that the cestuis que trust agreed to
pay the mortgage, but only that from their relations with Mr. Bostwick that undertaking should be implied. The proofs which we have noticed had no tendency to support any averment of the petition, and, therefore, should have been disregarded. (See Lipp v. Harbach, 12 Neb. 371, 11 N.W. 431; Hobbie v. Zaepffel, 17 Neb. 536, 23 N.W. 514; Clarke v. Omaha & S.W. R. Co., 5 Neb. 314; Uppfalt v. Nelson, 18 Neb. 533, 26 N.W. 362; Merchants Bank v. McConiga, 8 Neb. 245; German Ins. Co. v. Fairbank, 32 Neb. 750, 49 N.W. 711.)
In Smith v. Wigton, 35 Neb. 460, 53 N.W. 374, MAXWELL C. J., delivering the opinion of this court, said: As an original question, it might, perhaps, have admitted of doubt whether or not in a suit for the foreclosure of a mortgage the personal liability of purchasers who have assumed and agreed to pay such mortgage upon the premises should be enforced. This proposition, however, is now beyond question, for in Cooper v. Foss, 15 Neb. 515, 19 N.W. 506, the rule was thus laid down: "The holder of a note and mortgage where a third person has bought the mortgaged premises, and as the whole or a part of the consideration therefor has agreed with the mortgagor to pay the mortgage debt, can sue such third person therefor with or without foreclosure, or, upon foreclosure, if there is a deficiency, can take judgment against him therefor." This doctrine is approved in Rockwell v. Blair Savings Bank, 31 Neb. 128, 47 N.W. 641. The liability is enforced because the purchaser assumes and agrees to pay a sum certain secured by the mortgage. In the case last cited this liability was enforced, although it depended for proof upon oral evidence alone. This is upon the theory, doubtless, that, under the circumstances proved, the promise was an original promise, and therefore required no writing to evidence its existence. It is proper to join all grantees subsequent to the recording of a mortgage as defendants in a foreclosure thereof, and having been joined as a defendant the liability of one who has assumed payment of such mortgage may be enforced by a personal or a deficiency judgment, upon the theory that the court having jurisdiction in equity of the subject-matter for one purpose will afford a complete remedy as between all parties to the action. It is unnecessary to determine whether or not if the petition had stated fully the facts which it is claimed rendered liable the cestuis que trust, such cestuis que trust would have...
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