Watson v. Tromble

• Decision Date: 18 November 1891
• Citation: 50 N.W. 331,33 Neb. 450
• Parties: S. H. WATSON v. JOHN TROMBLE
• Court: Nebraska Supreme Court

50 N.W. 331

33 Neb. 450

S. H. WATSON v. JOHN TROMBLE

Supreme Court of Nebraska

November 18, 1891

ERROR to the district court for Cass county. Tried below before CHAPMAN, J.

AFFIRMED.

Byron Clark, for plaintiff in error.

W. L Browne, and E. H. Wooley, contra.

OPINION

NORVAL, J.

The plaintiff in error was plaintiff in the court below. A general demurrer was sustained to the petition, and the action dismissed. The petition contained two counts.

As a first cause of action it is alleged, in effect, that the plaintiff, on and prior to May 1, 1888, was the owner of the east half of the northwest quarter and the north half of the southwest quarter of section 35, township 10 north, of range 12, in Cass county; that on said date, in a suit pending in the district court of said county, wherein Deere, Wells & Co. were plaintiffs, and the plaintiff herein and one John W. Clarke were defendants, a decree was entered foreclosing two mortgages on said real estate, one in favor of Deere, Wells & Co. for $ 126.50, and the other in favor of said John W. Clarke for $ 263.70, the decree bearing interest at ten per cent from its date; that an order of sale was subsequently issued, the real estate above described was appraised, advertised, and sold, which sale was duly reported to the court and by it confirmed; that William L. Browne was the purchaser at the sale, but that the defendant John Tromble has since purchased said land and is now the owner thereof; that the officer, in making the appraisement deducted from the gross appraised value of the land all incumbrances thereon, including the amount of the above liens, for the satisfaction of which the sale was made, that by reason thereof the plaintiff is entitled to recover from the defendant the amount of said liens, with interest thereon, and that the same be decreed a lien upon said real estate.

In the second count it is alleged, in substance, that on the 17th day of March, 1887, but prior to the time plaintiff purchased said real estate, one Rebecca Watson had a dower interest therein, and on said date executed, acknowledged, and delivered her certain mortgage deed, whereby she conveyed to Thomas M. Howard and John W. Clarke, to secure the payment of her four promissory notes, aggregating $ 500, which said mortgage was duly recorded on the 19th day of March, 1887 and the real estate therein described was sold under the decree of foreclosure mentioned in the first count of the petition; that the sheriff, in appraising said land for the purpose of sale under said decree, deducted as a lien the amount of the above described mortgage, although long prior to such appraisement the plaintiff herein had purchased said real estate subject to said mortgage and had paid the same to said John W. Clarke and Thomas M. Howard, but the release had not at the time of said appraisement, nor has it yet, been placed upon record to show that said mortgage had been satisfied, so that when said appraisement was made, and from thence to the present time, said mortgage appears as a valid and subsisting lien upon said real estate; that the mortgage and the notes thereby secured have...