Theisen v. Peterson
| Decision Date | 30 December 1925 |
| Docket Number | 23485 |
| Citation | 206 N.W. 768,114 Neb. 150 |
| Parties | ANNA THEISEN ET AL., APPELLEES, v. JOHN PETERSON, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Pierce county: ANSON A. WELCH JUDGE. Affirmed.
AFFIRMED.
Spillman & Muffly, C. H. Kelsey and Lloyd Dort, for appellant.
Douglas Cones and M. H. Leamy, contra.
Heard before MORRISSEY, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
On June 2, 1921, Anna Theisen brought an action in the district court for Pierce county against John Peterson to foreclose a chattel mortgage for $ 16,000, alleged to have been given to her by Peterson to secure a note of like amount due January 1, 1922. The mortgage covered certain live stock, grain and farm machinery. The plaintiff based her right to foreclose upon the alleged ground that Peterson had disposed of a part of the mortgaged property; that the property was not being properly cared for and that there was danger of the security being lost.
The Security State Bank intervened, claiming that it was the holder of the note and mortgage; that it held them as collateral security for certain notes executed to the bank by Anna Theisen and Casper Theisen aggregating $ 15,900. In addition to the foreclosure the plaintiff, as well as the intervener, prayed that a receiver be appointed to take charge of the mortgaged property. Later the Security State Bank commenced an action in the district court for Pierce county against John Peterson to foreclose a real estate mortgage of $ 54,000 upon a half section of land in Pierce county.
Peterson filed answers in the two actions, alleging in substance that the notes and mortgages were given as a part of a transaction between himself and Casper Theisen, wherein the parties were making an exchange of their respective properties. Peterson was exchanging his equity in certain lands, live stock and farm implements, located in Harrison county, Iowa, which, for the purpose of trade, were valued at $ 40,235, for Theisen's equity in certain lands, live stock and farm implements, located in Pierce county, Nebraska, which, for the purpose of exchange, were valued at $ 108,235. To adjust this balance Peterson gave a chattel mortgage of $ 16,000 and a real estate mortgage of $ 54,000. The mortgage was given for $ 54,000 instead of $ 52,000 to adjust some difference which subsequently arose. Peterson further alleged that as inducement to making the exchange Theisen made false and fraudulent statements upon which Peterson relied in making the exchange; that, by reason of the false and fraudulent statements made by Theisen, Peterson claimed that he was damaged in the transaction in an amount in excess of the two notes. The answer further alleged that the bank was not a bona fide holder of the notes; that, while Anna Theisen was named as payee in the notes, they were in fact owned by Casper Theisen, and that Anna Theisen paid no consideration for having the notes and mortgages made payable to her. Peterson prayed that the notes and mortgages be canceled, and that he have personal judgment against Theisen for the amount of his damages after deducting the amount of the canceled notes. In the answer Peterson also asked that a receiver be appointed to take charge of the property covered by the chattel mortgage.
While the cases were pending the chattel property was sold by the receiver, and upon an order of the court $ 8,452.08 was turned into court.
The two cases were consolidated and tried on January 26,...
To continue reading
Request your trial