Tower v. Fetz
| Decision Date | 13 June 1889 |
| Citation | 26 Neb. 706,42 N.W. 884 |
| Parties | TOWER v. FETZ. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. F., the owner of a farm in Webster county, negotiated a loan of money thereon from one Fay of New York, through T., a loan and investment agent at Hastings. The mortgage on the farm was executed to Fay, but delivered to T., who attended to the collection of the interest, and, from the character of his dealings with Fay, was the moral guarantor of the interest and principal. F. made default in the payment of interest. T., being absent, wrote to one D., his local and general agent, that he would assume the mortgage in consideration of a warranty deed of the farm. Thereupon D. applied to F., and informed him that he was sent by T. to demand the interest, and, unless some arrangement was made, the mortgage would be foreclosed; that, if F. would make them a deed of the farm, they would take the land and sell it, and whatever was over, after paying the mortgage, taxes, and expenses, they would return to him; and that F. might have the same privilege, in which case he could turn over the proceeds sufficient to pay the mortgage. Thereupon F. executed a warranty deed of the farm to T., and delivered it to D. This deed, as between F. and T., held to be a mortgage.
2. A deed, absolute in its terms, may be shown by parol to have been given for the purpose of securing the payment of money; in which case, as between the parties, such deed will be construed to be a mortgage only.
Error to district court, Douglas county; HOPEWELL, Judge.
Savage, Morris & Davis, for plaintiff in error.
Montgomery & Jeffrey, for defendant in error.
This action was commenced in the district court of Douglas county by David Fetz, plaintiff, against Lyman H. Tower, defendant. The petition alleges that in March, 1880, the plaintiff was a resident of Webster county, and was owner in fee of one quarter section of land therein described, and that the defendant was a resident of the city of Hastings, engaged in negotiating loans on farm property; that, at said time, plaintiff employed defendant to negotiate a loan on said land for the sum of $800 with one Edwin R. Fay, for which plaintiff executed a mortgage on said land, securing a note payable to said Fay _______ years after date, with interest at 10 per cent., semi-annually; that plaintiff was unable to meet the interest coming due on said note, and on the 28th June, 1882, he was visited by one Dent, who was agent of said defendant, and who, by authority of defendant, approached plaintiff and informed him that, if he did not pay the interest on said mortgage to Fay, the mortgage would be foreclosed, and the property sold for a sum less than the amount of his indebtedness, and that a deficiency judgment would be rendered against him; but that, if he would convey the land to the defendant, Tower, he, Tower, would negotiate and sell the same at private sale for a much better price than it would bring at a judicial sale, and out of the proceeds would pay the said mortgage to Fay, and the taxes on the property, and account to the plaintiff for the balance of the price he should receive for the land. Accordingly, having confidence in the representations and promises of Dent, plaintiff made and delivered to Tower his warranty deed for the land, conveying the same to him, which deed was accepted by Tower on the day last mentioned, for which the plaintiff received no other consideration than the promises hereinbefore stated; that on January 2, 1883, Tower paid the taxes for the year 1881 on the land, amounting to $18.70, and on July 10, 1883, paid the taxes of 1882, amounting to $12.48; that defendant never paid any other sum on said land, but on June 27, 1883, sold the same for $1,200 over and above the mortgage, subject to the payment thereof, to one Wallace L. Lighthart, and executed a deed therefor, and received the said sum of $1,200; that the defendant, though often requested by the plaintiff to account for, and pay to him, the consideration received from said Lighthart for said land, less the amount of taxes paid thereon, has neglected and refused, and still neglects and refuses, so to do; with prayer for judgment for $1,168.82, with interest from June 27, 1883, at 7 per cent. per annum. The defendant answered, denying each and every allegation, except such as are specifically admitted or denied, and admitted that the plaintiff was the owner of the land; that he negotiated a loan for the plaintiff with Fay, as alleged; that, not knowing whether or not Dent made the representations set forth, he denies the same, and denies that Dent was the agent authorized and empowered to make any such representations; and says that he purchased the land from plaintiff, paying therefor a valuable consideration, and, in addition thereto, assumed the mortgage and note mentioned; that the land at the time of the purchase was not worth more than the amount loaned thereon, $800, and, in assuming the same, defendant was paying the full value; and that the sale was made to him without any conditions whatever, and was a bona fide sale, and so understood by all parties concerned. He admitted that afterwards he paid the taxes, and that on June 27, 1883, he sold the land to Wallace L. Lighthart, and conveyed the same to him for $1,200, and that he refuses to account to plaintiff for said sum, less the taxes, or for any other sum; and denies that he is indebted to the plaintiff in the sum of $1,168.82, or in any other sum whatever. The plaintiff replied, denying that the defendant purchased said land, paying a valuable consideration, and denying that he paid any consideration whatever; denying that the land, at the time of the purchase, was not worth more than the amount loaned thereon, $800; alleging that the land was worth at that time $2,500; and denying that, in assuming said note and mortgage, defendant was paying its full value; and denying that the sale was made without conditions, and was a bona fide sale, and so understood by all parties. There was a trial to the court, a jury being waived, which found for the plaintiff and gave judgment for $1,567.50.
The defendant brings the cause to this court on error, and assigns 20 distinct errors in the proceedings below, 17 of which are for the alleged erroneous admissions of testimony,offered by the plaintiff, and objected to by defendant; the eighteenth, that the decision is not sustained by sufficient evidence; the nineteenth, that the decision is contrary to law; the twentieth, that the court erred in overruling the motion for a new trial.
The three last only will be considered, as it has been often held that, where a cause is tried to a court without the intervention of a jury, its judgment will not be reversed by an appellate court for error in the admission of testimony on the trial. Richardson v. Doty, 41 N. W. Rep. 282;Enyeart v. Davis, 17 Neb. 228, 22 N. W. Rep. 449; 1 Greenl. Ev. (14th Ed.) § 49. So that, if upon the examination of the three last points, it shall appear that sufficient material and competent evidence was before the court to sustain its findings and judgment, they will not be reversed for the reason that there was also before it illegal and incompetent testimony. It appears from the bill of exceptions that in 1880 the plaintiff was the owner...
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