Stull v. Goold

• Decision Date: 15 May 1914
• Docket Number: 17,617
• Citation: 147 N.W. 468,96 Neb. 263
• Parties: WILLIAM STULL, APPELLANT, v. MATILDA P. GOOLD, APPELLEE
• Court: Nebraska Supreme Court

147 N.W. 468

96 Neb. 263

WILLIAM STULL, APPELLANT, v. MATILDA P. GOOLD, APPELLEE

No. 17,617

Supreme Court of Nebraska

May 15, 1914

APPEAL from the district court for Keith county: HANSON M. GRIMES JUDGE. Affirmed.

AFFIRMED.

Albert Muldoon, for appellant.

J. G Beeler and H. A. Dano, contra.

HAMER J. BARNES, ROSE and SEDGWICK, JJ., not sitting.

OPINION

HAMER, J.

This is an action brought by William Stull against Matilda P. Goold and John Doe, defendants. The petition alleges that William Stull is the owner in fee of the property in controversy, the northwest quarter of section 32, in township 13 north of range 39 west of the 6th P. M., in the county of Keith, state of Nebraska. He prays that a certain alleged pretended deed executed by H. L. Goold, as receiver of the State Loan & Trust Company, to Matilda P. Goold be canceled and annulled, and that the title shall be quieted in himself as against said deed, and for such other and further relief as equity may require. The defendant, Matilda P. Goold, claims through a deed from the receiver of the State Loan & Trust Company, dated May 25, 1909. The deed to her recites that H. L. Goold on the 29th day of September, 1896, was appointed and qualified as receiver of the State Loan & Trust Company, and the proceedings are copied into the deed showing such appointment. It is this deed which the plaintiff attacks. It is recited in it that the sum offered for the real estate is a good and sufficient sum, and that it is for the best interests of said State Loan & Trust Company, and the creditors thereof, that the property be sold, and there is an order directing the receiver upon the payment of $ 2,400 to execute and deliver to said Matilda P. Goold a good and sufficient deed to the land in question. The bill of exceptions shows that on the 25th day of May, 1909, the receiver reported the sale of the land to Matilda P. Goold, and that he had received therefor the sum of $ 2,400. It is also shown by the report of the receiver that the proceeds received from the sale of the property were used in payment of the debts of the company. The deed made by the receiver to Matilda P. Goold was recorded on the 26th day of May, 1909. The report of H. L. Goold, receiver, shows the amount paid to him for the land, and which he reports to have paid out in payment of debts against the State Loan & Trust Company, and further shows that all claims against the State Loan & Trust Company had been fully paid and satisfied.

Among the conveyances upon which the plaintiff relies to establish his claim is a quitclaim deed from the State Loan & Trust Company to Stull Brothers, dated August 27, 1896, and filed for record February 23, 1910. The deed recites a consideration of one dollar paid by Stull Brothers to the State Loan & Trust Company.

The bill of exceptions shows a conveyance by Louis Stull and his wife, Grace W. Stull, for the alleged consideration of one dollar, paid September 20, 1898, acknowledged December 20, 1898, and filed for record November 26, 1906, and recorded in miscellaneous record C at page 300. The purported quitclaim deed from Louis Stull and wife to William Stull undertakes to convey the interest of said Louis Stull in any and all property, "real, personal and mixed, belonging to said firm of Stull Brothers, and to all lands and lots in the states of Nebraska, Iowa, Kansas, and Missouri standing in the name of Louis Stull of said Stull Brothers, acquired by, through or on account of any mortgage or trust deed in favor of said Stull Brothers, Louis Stull, or William Stull, whether as beneficiary, trustee or mortgagee." This instrument is at most a relinquishment by Louis Stull to William Stull of any possible right which the said Louis Stull may have in the kind of property described and within the states mentioned.

William Stull's testimony is not very clear. He speaks of releasing the bank from liability, and gives that as one of the reasons for not filing the deed sooner. It does not appear that the bank assumed to pay the mortgage debt upon the premises. The land is conveyed by George W. Ryan, Jr., and his wife, Nellie W. Ryan, to the State Loan & Trust Company, "subject, however, to one certain mortgage of $ 700, drawing 7 per cent. interest semiannually in favor of Stull Brothers, of Lincoln, Nebraska, and we do hereby covenant with the said State Loan & Trust Company of Ogalalla, and their heirs and assigns, that we are lawfully seized of said premises; that they are free from incumbrance, except as above mentioned, and we have good right and lawful authority to sell the same; and we do hereby covenant to warrant and defend the title to said premises against the lawful claims of all persons whomsoever." The language used shows no assumption of the mortgage debt. It gives no sufficient reason for not filing the deed of record in a reasonable time. There was no liability on the part of the State Loan & Trust Company to pay this debt; at least there is no evidence tending to establish that fact. Nothing passed from Stull Brothers to the State Loan & Trust Company. Stull did not settle the mortgage debt. He did not release the mortgage. Theodore Goold, the stepson of the defendant, wrote to William Stull about releasing the mortgage. Of course, this enabled Stull to learn of the death of Mr. Goold. Mr. Goold's death prevented his testimony in this case.

William Stull testified concerning the quitclaim deed of date of August 27, 1896, the deed professing to convey the land in controversy to Stull Brothers by the State Loan & Trust Company for the consideration of one dollar. "Q. Did you have any personal consideration in this deed yourself? A. We had an interest in the mortgage; it was an assignment of coupons; and we had advanced some taxes that we were interested in. Q. Can you explain why the deed was not recorded? A. The correspondence was through a broker to whom we sold the paper, and we did not know the actual or bona fide owner of the paper, but these brokers, Haines & Co. , the loan had been sold through them to some one, we didn't know to whom, and the interest had been sent to them, the coupons returned to us; they were a reliable house and they were representatives of the owners of the mortgage. Our attorneys advised us not to record that deed for the reason that, inasmuch as we had nothing in writing from the owner of the mortgage, it would be unsafe for us to file it for record; the owner of the mortgage might repudiate his agent's promises, and then take the position that we had bought the land, and we were under no obligation to pay the debts. Q. Did you know who the real owner and holder of the mortgage was at the time you took the deed? A. No, sir; we did not. Q. Can you state approximately how much of a consideration you had personally advanced in this...