Schultz v. Loomis

• Decision Date: 17 April 1894
• Docket Number: 6613
• Citation: 58 N.W. 693,40 Neb. 152
• Parties: WILLIAM SCHULTZ, JR., ET AL., APPELLEES, v. ALTIE E. LOOMIS ET AL., APPELLANTS
• Court: Nebraska Supreme Court

58 N.W. 693

40 Neb. 152

WILLIAM SCHULTZ, JR., ET AL., APPELLEES, v. ALTIE E. LOOMIS ET AL., APPELLANTS

No. 6613

Supreme Court of Nebraska

April 17, 1894

APPEAL from the district court of Lancaster county. Heard below before STRODE, J.

REVERSED.

Cobb & Harvey and Darnall & Kirkpatrick, for appellants, cited Vought v. Foxworthy, 38 Neb. 790; Young v Brand, 15 Neb. 601; Vincent v. Moore, 51 Mich 618; Walton v. Hollywood, 47 Mich. 385; Carulhers v. Humphrey, 12 Mich. 270; Moynahan v. Moore, 9 Mich. 9.

S. L. Geisthardt, contra, cited: State Nat. Bank of Lincoln v. Scofield, 9 Neb. 499; Johnson v. Bemis, 7 Neb. 224; Runge v. Brown, 29 Neb. 116; Dietrichs v. Lincoln & N. W. R. Co., 13 Neb. 43; Sessions v. Irwin, 8 Neb. 5; Craig v. Stephenson, 15 Neb. 362; La Flume v. Jones, 5 Neb. 256.

OPINION

RYAN, C.

The appeal in this case is from the confirmation of a sale and a decree of foreclosure in the district court of Lancaster county. To an understanding of our conclusion it is necessary to give a history of the proceedings antedating and forming the basis of the order of confirmation of which complaint is now made.

On the 25th day of April, 1893, William Schultz, Jr., and the Clark & Leonard Investment Company (a Nebraska corporation), as plaintiffs, filed in the aforesaid district court their joint petition, in which Altie E. Loomis and Carlton E. Loomis, her husband, were made defendants. This petition was for the foreclosure of a mortgage executed by the defendants to the Clark & Leonard Investment Company October 14, 1891. This mortgage was to secure payment of a bond contemporaneously made, whereby Altie E. Loomis and Carlton E. Loomis promised to pay to the aforesaid investment company the principal sum of $ 7,000 October 1, 1896, and interest thereon at six per cent per annum, as evidenced by nine coupons, each for $ 210, one of which fell due on each of the following dates, to-wit, October 1, 1892, 1893, 1894, 1895, 1896, and April 1, 1893, 1894, 1895, and 1896, respectively. The plaintiffs averred in their petition that after the 14th day of October, 1891, the date of said mortgage, it was duly assigned, indorsed, and delivered by the aforesaid investment company to its co-plaintiff, William Schultz, Jr., who, it was alleged in the petition, was still the owner thereof at the time said petition was filed, such ownership being qualified only as afterward set forth in the petition. It was averred that the investment company, when it assigned the said mortgage to William Schultz, Jr., guarantied payment of the interest thereon as part of the consideration of said assignment. The sixth and seventh paragraphs of the petition are in this language:

"6. The defendants have not paid, or caused to be paid, the debt secured by said mortgage, or any part thereof, as provided thereby as due on the annexed note and coupons, but are in default in this, to-wit, that they have not paid, or caused to be paid, the interest coupons due on October 1, 1892, and thereafter, nor the taxes levied on said lands for the years 1890 and thereafter, but the same have become delinquent, and said land has been sold by the county treasurer of said county for the payment thereof, according to the statute in such case made and provided; wherefore plaintiffs have elected, and hereby elect, to consider the whole sum so secured due and payable, and said mortgage deed has thereby become absolute.

"7. That heretofore, to-wit, on October 1, 1892, and April 1, 1893, the defendants were in default of the interest coupons then maturing, and the plaintiff the Clark & Leonard Investment Company did pay the amount thereof to the plaintiff William Schultz, Jr., pursuant to its contract of guaranty aforesaid, and said coupons were thereupon reassigned and delivered to the plaintiff the Clark & Leonard Investment Company, and the same is now the lawful owner and holder thereof."

As a cause of action in favor of the Clark & Leonard Investment Company alone, that company stated in the petition aforesaid that on May 2, 1892, the defendants made to said company their promissory note for $ 956.75, due November 1, 1892, upon which interest accrued at the rate of ten per cent per annum after maturity by its terms; that to secure the payment of said note the defendants mortgaged to said company the same premises which had previously been mortgaged as hereinbefore stated. In respect to the last made mortgage there were the proper averments to entitle the investment company to a decree of foreclosure. The prayer of the petition was as follows: "Wherefore the plaintiffs pray that the court will ascertain the facts in the premises and render judgment for such sum as may be found due; that the defendants, and each of them, may be foreclosed in and to said premises; that the premises may be sold according to law, and the proceeds duly applied to satisfy the amounts found due according to priority; that judgment be rendered for each of plaintiffs for any deficiency which may remain against the defendants, and for such other and further relief as may be just and equitable."

In this connection it is proper to say that the mortgage first referred to in the petition provided that the failure to pay any of the money therein promised to be paid, either principal or interest, within thirty days after the same became due, or to perform any other condition (one...