Studebaker v. McCurgur

• Citation: 30 N.W. 686,20 Neb. 500
• Parties: STUDEBAKER, ETC., CO. v. MCCURGUR.
• Decision Date: 01 December 1886
• Court: Nebraska Supreme Court

20 Neb. 500

30 N.W. 686

STUDEBAKER, ETC., CO.

v.MCCURGUR.

Supreme Court of Nebraska.

December 1, 1886.

Syllabus by the Court.

The assignment of one of a series of notes, secured by mortgage, without any accompanying transfer of the mortgage, is an assignment pro tanto of the mortgage.

Where there are several notes secured by mortgage, the holders are entitled to share equally in the common fund, and a foreclosure by a holder of a portion of the notes, without making the other holders parties, will not bar the right of such parties to bring an action of foreclosure.

An action to foreclose a mortgage of real estate may be brought at any time within 10 years after the cause of action accrues.

Appeal from district court, Madison county.

Robertson & Campbell, for appellant.

H. C. Brome, for appellee.

MAXWELL, C. J.

On the ninth day of March, 1874, J. D. Brasel and David Gilmer executed a mortgage upon the premises in controversy in favor of one J. D. Hite, said mortgage being given to secure four promissory notes of even date therewith, executed by Brasel and Gilmer in favor of said Hite; said notes being described in the mortgage as follows:

+-------------------------------+
                ¦One for $ 98,¦due March 6, 1875¦
                +-------------+-----------------¦
                ¦One for 100, ¦due March 6, 1876¦
                +-------------+-----------------¦
                ¦One for 100, ¦due March 6, 1877¦
                +-------------+-----------------¦
                ¦One for 200, ¦due March 6, 1878¦
                +-------------------------------+
                

--All of said notes bearing interest at 10 per cent. per annum from date. July 12, 1875, J. D. Hite assigned this mortgage to one L. F. Taylor, the assignment, duly acknowledged, being written on the back of the mortgage. December 1, 1875, L. F. Taylor transferred to Aultman, Miller & Co. the two $100 notes mentioned, one falling due March 6, 1876, and one falling due March 6, 1877, and at the same time delivered to them the mortgage assigned to him by Hite, having first written thereon the following words:

“NORFOLK, NEB., Dec. 1, 1875.

I hereby assign all my right, title, and interest to the within mortgage to Aultman, Miller & Co., of Akron, Ohio.

L. F. TAYLOR.”

None of these assignments appear to have been recorded until March 18, 1881, when both were recorded. March 23, 1878, Aultman, Miller & Co. commenced foreclosure proceedings upon the two $100 notes, assigned to them, and the mortgage in question. A decree of foreclosure was rendered, the premises sold thereunder, Aultman, Miller & Co. being the purchasers, receiving sheriff's deed in November, 1880. April 4, 1883, Aultman, Miller & Co. quitclaimed to the defendant, McCurgur. McCurgur, is now in possession of the premises, having received the same from his grantors, Aultman, Miller & Co., who obtained possession November, 1880. The regularity of the foreclosure proceedings is not questioned, except that Studebaker Bros. Manufacturing Company were not made parties, and had no notice of the pendency of the action. Studebaker Bros. now own the $98 note, and seek in this action to foreclose the mortgage, claiming the same as a security to said note upon which they now seek to realize. They have possession of the note which is indorsed as follows: “July 12, 1875. Pay to L. F. Taylor or order. J. D. HITE.” Underneath this is the blank indorsement, “L. F. TAYLOR.” This $98 note became due by its terms March 6, 1875.

There is no allegation in the pleadings or evidence in the record as to when Studebaker Bros. Manufacturing Company became the owner of it, except the indorsement above referred to. Aultman, Miller & Co. and the defendant, McCurgur, had no knowledge of the whereabouts of said note, of its existence, or as to whether it had been paid or not, until long after the foreclosure proceedings instituted by Aultman,...