Upton v. Betts
| Decision Date | 07 March 1900 |
| Docket Number | 9,152 |
| Citation | 82 N.W. 19,59 Neb. 724 |
| Parties | HIRAM D. UPTON ET AL. v. GEORGE BETTS ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Saline county. Tried below before HASTINGS, J. Affirmed.
AFFIRMED.
F. I Foss, W. R. Matson and C. E. Holland, for plaintiffs in error:
A mortgage recorded prior to an entry of judgment which was a lien upon the property took precedence of the judgment lien. See 1 Jones, Mortgages, sec. 461; Jackson v. Dubois, 4 Johns. [N.Y.], 216; Dunwell v. Bidwell, 8 Minn 18; Goodenough v. McCoid, 44 Ia. 659; Lambertville Nat. Bank v. Boss, 13 A. [N.Y.], 18. [*]
As between a mortgage and a judgment rendered in a county different from that in which the land was, priority was determined by priority of registration in the county where the land is situated. See Firebaugh v. Ward, 51 Tex 409; Gray v. Patton, 13 Bush [Ky.], 625.
Under the statute, which provided that a mortgage recorded within a certain time after its date, should take effect, as between the parties, from its date, a judgment recovered subsequently to the date of a mortgage, and before the recording of it, bound only the equity of redemption, and was subject to the mortgage, without regard to the question of actual notice, if the mortgage was subsequently recorded within the time prescribed by law. See Knell v. Green Street Building Ass'n, 34 Md. 67.
The limit of inquiry necessary in any case was that required by the use of reasonable diligence. See Passumpsic Savings Bank v. National Bank of St. Johnsbury, 53 Vt. 82; Vredenburgh v. Burnet, 31 N.J.Eq. 229; Babcock v. Lisk, 57 Ill. 327; Heaton v. Prather, 84 Ill. 330.
As a general rule a final decree could not be amended after the term in which it is ended. See 5 Am. & Eng. Ency. Law, 380, note 2; Pope v. Hooper, 6 Neb. 178; Bramlet v. Pickett, 12 Am. Dec. 350, 2 A. K. Marsh. [Ky.], 10.
A mandate was not necessary to the finality of a judgment. Powell, Appellate Proceedings, pages 284, 287, showed the purpose of a mandate. See, also, Powell, page 345, as to the use of a mandate.
The universal rule was acknowledged to be that where any question of fact, however slight, was involved, parties are entitled to have the jury pass upon such questions. See Johnson v. Missouri P. R. Co. 18 Neb. 690.
James W. Dawes and Joseph R. Webster, for the defendant in error, Sims, argued that the radical question was, Had this court still jurisdiction of the cause after the decree of December 14, 1888, to modify it, and send the cause back for trial on another issue? If it then had jurisdiction, then the decree of December 14, 1888, was not in fact final. This court had full and complete jurisdiction of the cause of Betts v. Sims, to modify the decree, and remand the cause for trial on the new issues formed. The mortgages were taken lis pendens, and were barred by result of that controversy. There are in this state no statutory or constitutional provisions defining when jurisdiction of this court, once acquired, ceases. Every authority cited by plaintiffs in error, on the power of courts to modify their judgments after the term at which they are rendered (save two), related to modification of judgments made, attempted or sought in courts not of last resort where a somewhat different rule prevailed. In 156 U.S. 267, the court held it had power till expiration of 1893 (July, 1894) term to modify its decree of April 3, 1893 (October term of 1892), but could not do so in 1895, more than two years after its rendition. On page 25 counsel quoted from brief of counsel in Longworth v. Sturgis, 6 O. St. 147, by some inadvertence citing it as, and probably supposing it to be, the language of the court. This was not adopted as a part of its opinion. The court, in that case, refused to modify its judgment, or yield to a bill of review, because mandate had been sent down and filed in the lower court, new parties brought in, new issues made, and the cause was in due course of adjudication below.
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 mortgage 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 the 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...
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