Roberts v. Samson

• Decision Date: 03 March 1897
• Docket Number: 7118
• Citation: 70 N.W. 384,50 Neb. 745
• Parties: CHARLES S. ROBERTS, APPELLANT, v. FRANK E. SAMSON ET AL. APPELLEES
• Court: Nebraska Supreme Court

70 N.W. 384

50 Neb. 745

CHARLES S. ROBERTS, APPELLANT, v. FRANK E. SAMSON ET AL. APPELLEES

No. 7118

Supreme Court of Nebraska

March 3, 1897

APPEAL from the district court of Cuming county. Heard below before NORRIS, J. Affirmed.

AFFIRMED.

Tiffany & Vinsonhaler, Ferry & Small, and Dawes, Coffroth & Cunningham, for appellant.

T. M Franse, contra.

OPINION

POST, C. J.

This was an action by Charles S. Roberts in the district court of Cuming county by which he sought to foreclose a certain real estate mortgage executed by Frank E. Samson and wife to the Lombard Investment Company for the principal sum of $ 1,700 and interest from date, to-wit, February 28, 1890, at the rate of six and one-fourth per cent per annum, as evidenced by the bond and coupon notes of the said Frank E. Samson, and to which action the Valley Loan & Trust Company and Waldo E Whitcomb were also joined as parties defendant. To the petition, which is in the usual form, Whitcomb answered admitting the execution of the aforesaid bond and coupon by Samson, and alleging that J. T. Meyers, before whom, as county clerk of Cuming county, the said mortgage purports to have been acknowledged, was not in fact at the date of the certificate thereto, to-wit, March 1, 1890, the clerk of said county, and that said pretended acknowledgment is without authority and void, and that the said mortgage was accordingly not entitled to record in Cuming county. Another allegation of the answer to which especial prominence is given in the briefs of counsel is the following: "The defendant, for answer to paragraph eight of the petition says: He admits that no proceedings at law have been had for the recovery of said debt, and denies that said debt has not been paid and denies each allegation of said paragraph except as specially admitted, and avers the fact to be that heretofore, to-wit, on the 20th day of August, 1891, said negotiable real estate mortgage bond described in paragraph one of plaintiff's petition was fully paid and cancelled by the execution and delivery by the defendants Frank E. Samson and Harriet E. Samson to the Valley Loan & Trust Company of a quitclaim deed of the premises described in plaintiff's petition on condition and in consideration that said mortgage bond be cancelled and that the mortgage hereinafter declared upon be assumed and paid by the grantee named in said deed, which deed was duly recorded in the clerk's office of Cuming county, Nebraska, in book X of deeds on page 46, and was duly indexed and said grantee named in said deed went into immediate possession of said premises and have been, and are now, in the possession of said premises under said deed, and rent said premises and receive the rents and profits thereof and have neglected and refuse to pay the defendants' note and mortgage described in the following cross-petition:" Accompanying the foregoing answer is a cross-bill, in which is alleged the execution by the Samsons to Jacob Brememan, under date of March 1, 1890, of a mortgage upon the premises in controversy to secure the four notes of the mortgagors named in...