Reynolds v. Dietz

Citation51 N.W. 747,34 Neb. 265
PartiesREYNOLDS v. DIETZ ET AL.
Decision Date23 March 1892
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. In appeal cases, where the interests of the parties plaintiff or defendant are so connected that the appeal necessarily will bring up the entire record, the failure to serve the bill of exceptions on some of such parties will not be cause for quashing the bill.

2. In an action to foreclose a mortgage on certain real estate it was alleged in the petition, in substance, that after the execution of the mortgage the land had been sold to B. and others named, who assumed the mortgage as a part of the consideration for the land; the title being taken in the name of B. as trustee. These allegations were denied in the answer. The proof tended to show that the land had been valued at $20,000; that certain parties named had each taken a tenth interest in the land, paying therefor in cash $1,140, subject to the mortgage of $8,600 on the entire tract. Held, that the trustee had the title in trust for those who advanced the consideration, and that, in case of deficiency after sale of the mortgaged premises, each shareholder would be liable therefor in proportion to the amount of his separate interest in the property, and no more.

3. The counter-claim of S. for services was properly rejected, as the proof failed to show a contract with the defendants which authorized him to render such services.

Appeal from district court, Adams county; GASLIN, Judge.

Action by Lewis D. Reynolds against Gould P. Dietz, Edward M. Stickney, and Harrison Bostwick to foreclose a mortgage. Judgment for plaintiff. Defendants appeal. Reversed.

M. A. Hartigan, for appellants.

J. B. Cessna, Talbot & Bryan, and Capps, McCreary & Stevens, for appellee.

MAXWELL, C. J.

This is an action to foreclose a mortgage upon real estate. The mortgage was executed by G. P. Dietz and E. M. Stickney upon the S. 1/2 of the S. 1/2 of section 8, township 7, range 9 W. of the sixth P. M., excepting, however, the west 70 acres of above contract heretofore conveyed, and also subject to the right of way privileges granted to the Republican Valley Railroad Company by deed dated March 18, 1886, and recorded in Book 26, page 270, of the records of Adams county, Neb. This mortgage is given in part of purchase money of above-described premises. The above mortgage was executed on the 29th of March, 1887, to secure the notes of Dietz and Stickney, due in one, two, and three years, each for the sum of $2,875. It is alleged in the petition that on the 14th day of June, 1887, Gould P. Dietz, Lenore A. Dietz, his wife, and Edward M. Stickney, and Carrie Stickney, his wife, sold, transferred, and conveyed for a valuable consideration the tract of land above described to H. Bostwick, trustee, one of the defendants herein named, by deed dated June 14, 1887, and recorded in Book 31, page 164, of the records of Adams county, Neb. That in said deed there is the following covenant and agreement: “And subject to a certain mortgage of $8,625, dated March 29, 1887, and due in one year, two years, and three years from date, respectively, with interest at the rate of 8 per cent. per annum from date, all of which the said H. Bostwick, trustee, agrees to assume and pay, with interest accrued, as a part of the purchase price of said premises, said mortgage executed by G. P Dietz and E. M. Stickney to Lewis D. Reynolds.” That plaintiff is now informed, believes, and is ready to prove that the deed was taken by H. Bostwick, trustee, for Frank C. Fry, James C. Kay, H. Bostwick, Joseph Boehmer, B. J. Brotherton, Thomas Hyde, Alexis Halter, Mark Levy, W. H. Fuller, and Alice Sawyer, the other defendants in this case. That this deed was made to H. Bostwick, and at the special instance and request of the said cestuis que trustent, the other defendants aforesaid, and for their benefit the said H. Bostwick agreed to assume and pay this said mortgage of $8,625 to the plaintiff aforesaid. That by said deed, and the acceptance thereof, the said H. Bostwick and the cestuis que trustent defendants aforesaid did assume and become personally responsible for the payment of said mortgage of $8,625 given by Gould P. Dietz and E. M. Stickney to Lewis D. Reynolds, plaintiff. That on the 11th day of July, 1887, the said H. Bostwick, trustee, by deed of that date, conveyed or attempted to convey said real estate above described to Everett C. Sawyer, trustee. That the defendants Harrison Bostwick, trustee, Everett C. Sawyer, trustee, Alice E. Sawyer, Frank C. Fry, James C. Kay, George A. Stickney, B. H. Whitney, Joseph Boehmer, B. J. Brotherton, Thomas Hyde, Alexis Halter, Mark Levy, Abraham Loeb, and William H. Fuller have or claim some lien or interest in said premises hereinbefore described, thus conveyed by said mortgage; but whatever, if any, such claim or lien may be, this plaintiff avers that it is in fact and in law subsequent and subject to the lien or claim of the plaintiff thereon, as hereinbefore stated. Everett G. Sawyer,...

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