Upton v. Betts

• Decision Date: 07 March 1900
• Citation: 82 N.W. 19,59 Neb. 724
• Parties: UPTON ET AL. v. BETTS ET AL.
• Court: Nebraska Supreme Court

59 Neb. 724

82 N.W. 19

UPTON ET AL.

v.BETTS ET AL.

Supreme Court of Nebraska.

March 7, 1900.

Syllabus by the Court.

1. In an action quia timet, where the only issue was the validity of a deed under which defendant asserted title, a decree in favor of the plaintiff will not preclude the defendant from afterwards asserting an equitable lien for money paid by him in discharging a valid mortgage on the property.

2. A matter in issue covered generally or specifically by the decree of the court cannot be again litigated, without a modification or vacation of that decree.

3. A junior incumbrancer, who claims priority over an elder equitable lien, must allege and prove that he acted in good faith in the transaction, and that he paid out the full amount secured by his lien, in ignorance of the prior equity.

4. The findings of the court must respond to the issues raised by the pleadings in the case.

5. Evidence examined, and found to support the findings and decree of the court.

Error to district court, Saline county; Hastings, Judge.

Action by Hiram D. Upton against George Betts and others. Judgment for defendant Sims, and Upton and defendant Ernest C. Holland bring error. Affirmed.F. I. Foss, W. R. Matson, and C. E. Holland, for plaintiffs in error.

J. W. Dawes and J. R. Webster, for defendants in error.

SULLIVAN, J.

This action was brought by Hiram D. Upton to foreclose a mortgage on real estate in Saline county. Ernest C. Holland answered, setting up a junior mortgage on the premises described in the petition. F. L. Sims, who is the fee owner of the property, filed an answer claiming title through a sale under a decree foreclosing an equitable lien in favor of himself, and antedating the mortgages of both Upton and Holland. To this answer the mortgagees replied. The reply of Holland was a general denial, while that of Upton was a general denial coupled with a statement that he had taken his mortgage on the faith of a decree rendered by this court in an action between George and Eliza Betts and Sims, involving the ownership of the land here in controversy. The trial court found the issues in favor of Sims, and rendered a decree quieting his title. Upton and Holland filed a joint motion for a new trial, and they have also joined in the petition in error. The substance of their contention is that, while the lien upon which Sims grounds his title was anterior to the mortgages, it was a secret lien, and therefore not entitled to priority. It appears from the record that George Betts was at one time the owner of the property; that he occupied it as a homestead; that Charles Bidleman had a valid mortgage thereon; that Sims purchased and paid for the land, and was given possession of it; that he then paid off the Bidleman mortgage and caused it to be released of record; that afterwards Betts and wife sued Sims to quiet their title to the land, on the theory that it was a family homestead, and that Mrs. Betts not having joined with her husband in the deed through which Sims claimed title, the deed was void; that the action was tried in the district court, and that the trial resulted in a finding and judgment in favor of Sims; that the cause was appealed to this court, where on December 14, 1888, a decree was rendered in favor of George and Eliza Betts, quieting their title, and awarding them possession and costs; that after the adjournment of the term at which the decree was rendered, and after the expiration of the time limited by the rule for filing a motion for a rehearing, Sims asked and obtained in this court leave to file an amended answer setting up the facts in regard to the payment by him of the Bidleman mortgage; that after such answer was filed the cause was remanded to the district court, where a trial was had, and a decree rendered awarding Sims a lien on the property, on the ground that he had succeeded to the rights of Bidleman in relation to the debt which he had discharged; that Sims' present title is derived from a sale of the property made in execution of that decree. It further appears that the mortgages involved in the present suit were given by George and Eliza Betts on March 13, 1889.

There is in the briefs of counsel much discussion touching the power of this court to alter the decree rendered by it on December 14, 1888, but we think the question is not of vital...