Watts v. Gantt

Decision Date04 December 1894
PartiesWATTS v. GANTT ET AL.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. The right of a corporation to hold title to real estate, or to purchase and hold a lien thereon, cannot be questioned collaterally, but can only be attacked in a direct proceeding instituted for the purpose. Such purchase and holding are not void, but are voidable, and none but the sovereign can object. Land Co. v. Bushnell, 8 N. W. 389, 11 Neb. 192, followed.

2. A married woman may in this state mortgage her separate estate or property to secure the payment of the individual debt of her husband. A loan of the money to the husband, creating the debt so secured, is a sufficient consideration for her executing and delivering the mortgage.

3. A married woman who executes and delivers a mortgage on her separate property to secure the debt of her husband occupies the position of surety of her husband to the extent of the property mortgaged.

4. An extension of time for the payment of a debt will not discharge a surety unless it is for a definite time and on a sufficient consideration.

5. Certain alleged counterclaims pleaded in the answer of one of the defendants. Held not to arise out of the transaction upon which the plaintiff's cause of action was based, and not connected with the subject of the plaintiff's action, and hence not competent as counterclaims in this action.

Appeal from district court, Wayne county; Allen, Judge.

Action by C. H. Watts against W. E. Gantt and wife and the Farmers' Loan & Trust Company to foreclose a mortgage. Decree for plaintiff. Defendants appeal. Affirmed.

J. J. McCarthy, W. E. Gantt, and Davis, Gantt & Briggs, for appellants.

Wigton & Whitham, for appellee.

HARRISON, J.

On the 7th day of April, 1884, W. E. Gantt executed and delivered to Charles H. Watts a promissory note in the sum of $800, due April 7, 1889, and bearing interest at 8 per cent. per annum, and a mortgage to secure the payment of the note was executed by W. E. Gantt and his wife, Carrie E. Gantt, covering certain lots in Ponca, Neb., the title to which was of record in the name of the wife, Carrie E. Gantt, and which were her separate property. July 8, 1891, this action was instituted in the district court of Dixon county to foreclose the mortgage, and a portion of the relief prayed for in the petition filed was the appointment of a receiver to take charge of the property, and collect the rents and profits thereof, and apply them on the indebtedness. The statement in the petition to show the necessity of the appointment of a receiver was as follows: “That, since the execution of said note and mortgage, said lots have greatly depreciated in value, on account of the decline in real-estate values in said city of Ponca, and that said lots are entirely inadequate for the payment of said mortgage indebtedness and tax lien, and an insufficient security for plaintiff's debt, the actual cash values of said lots at this date being not more than $900, and the aggregate amount of said mortgage indebtedness and tax lien amounting at this date to the sum of $1,380; that W. E. Gantt, the maker of said note, is insolvent, and has no property out of which said indebtedness, or any part thereof, can be made; and that the rental value of said lots does not exceed the sum of $180 per annum.” The petition also contained the following allegation: “That the defendants Carrie E. Gantt and W. E. Gantt have wholly failed to pay the taxes on said lots for the years 1887 to 1890, inclusive, and that said lots were on the 11th day of November, 1890, sold for taxes to the defendant the Farmers' Loan and Trust Co., of Sioux City, Iowa, and that said defendant has a tax lien on said lots, on account of said purchase, in the sum of $400.” With the petition there was an affidavit filed for service by the publication of the summons, and also the notice of application for a receiver. Publication of the two notices was commenced on the following day, and continued to completion. The date at which defendants were required to answer was August 7, 1891, and the time set for hearing the application for the appointment of a receiver August 15, 1891. The notice of the hearing in the receiver matter was as follows: “You are hereby notified that on the 15th day of August, A. D. 1891, at 10 o'clock a. m., or as soon thereafter as I can be heard, I will apply to the Hon. W. F. Norris, judge of district court, Dixon county, at chambers, in Ponca, Nebraska, for the appointment of a receiver to collect the rents and profits of lots 7 and 8, block 99, Ponca, Nebraska, and report the same to said district court, upon the ground that said premises, being the property of defendants Carrie E. Gantt and W. E. Gantt, and mortgaged by them to the plaintiff, to secure the payment of a promissory note executed by defendant W. E. Gantt to the plaintiff, April 17, 1884, for $800; that defendant Farmers' Loan and Trust Co. has a tax lien on said lots; and that said lots are insufficient security for the payment of plaintiff's debt; and that W. E. Gantt, the maker of said note, is insolvent, and has no other property out of which said debt can be made. * * *” This notice was published in the Ponca Gazette on July 9, 16, 23, 30, and August 6, 1891. With reference to the hearing on this branch of the case there appears the following admission in the fifth paragraph of a stipulation admitting certain facts: “It is admitted that no hearing has ever been had on the motion for the appointment for a receiver; that at the time set for said hearing, to wit, on the 15th day of October, 1891, an objection was made by defendants W. E. Gantt and C. E. Gantt to Judge Norris, exercising jurisdiction, on the ground that he would be a material witness in the case, and, for said reason, said judge refused to act on the same, and the same, for said reason, has never been passed upon.”

The answers of the principal defendants, the Gantts, were not filed on or before the answer day, August 7th, or were filed out of time. The answer of Carrie Gantt was first directed to the sixth paragraph of the petition, and denied the existence of any lien against the premises arising from the purchase of the property for delinquent taxes, and averred that the Farmers' Loan & Trust Company was a foreign corporation, organized and existing under the laws of the state of Iowa, and had never been a corporation of the state of Nebraska, and was not entitled to do business in this state, and that their pretended purchase of the premises for taxes was void; that the articles of incorporation or charter of the company did not empower them to purchase lands for delinquent taxes at tax sales, or to hold such liens; hence the purchase of this property by it was unauthorized and void, and gave it no right of lien. This was followed by a denial of each and every allegation of the seventh paragraph of the petition, and remaining portions of her answer were devoted to setting forth that the premises mortgaged were the sole and separate property of Mrs. Gantt, and the debt evidenced by the note that of the husband alone, and that no benefit from the loan made to the husband when the note and mortgage were given, or its proceeds, was ever received by her, nor was any of the money loaned in any manner used upon or for the benefit of her separate estate or property, and that no consideration passed to her for executing the mortgage; that her liability created by signing the mortgage was that of a surety; and that she was discharged from liability as such surety by reason of extensions of time for payment of the note, granted to her husband, after its maturity, each for a definite time and valuable consideration, and without notice to her or knowledge on her part of such extensions. W. E. Gantt, in his answer, denies that the Farmers' Loan & Trust Company has any lien against the premises described in the petition, by reason of its pretended purchase for delinquent taxes; also denies the statement of the seventh paragraph of the petition; and, for further answer, sets up five of what are denominated in the answer...

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12 cases
  • Holmes v. Hull
    • United States
    • Nebraska Supreme Court
    • 16 Febrero 1897
    ...v. Craig, 12 Neb. 464, 12 N. W. 1;Nelson v. Bevins, 19 Neb. 715, 28 N. W. 331;Bank v. Sharpe, 40 Neb. 123, 58 N. W. 734;Watts v. Gantt, 42 Neb. 869, 61 N. W. 104. The loan to the husband was a sufficient consideration for the mortgage, and, it having been made upon the faith and credit of M......
  • Holmes v. Hull
    • United States
    • Nebraska Supreme Court
    • 16 Febrero 1897
    ... ... 464, 12 N.W. 1; Nelson v ... Bevins, 19 Neb. 715, 28 N.W. 331; Buffalo County ... Nat. Bank v. Sharpe, 40 Neb. 123, 58 N.W. 734; Watts ... v. Gantt, 42 Neb. 869, 61 N.W. 104.) The loan to the ... husband was a sufficient consideration for the mortgage, and ... it having been made ... ...
  • Weiner v. Equel's Style Shop, Inc.
    • United States
    • North Carolina Supreme Court
    • 25 Noviembre 1936
    ...merely the motive for the commission of the tort." Columbia Nat. Bank v. Rizer, 153 S.C. 43, 150 S.E. 316, 68 A.L.R. 443; Watts v. Gantt, 42 Neb. 869, 61 N.W. 104, 107; Bank of Charleston v. Bank of Neeses, 127 S.C. 119 S.E. 841; Hendrickson v. Smith, 111 Wash. 82, 189 P. 550; Lyric Piano C......
  • Weiner v. Equel's Style Shop Inc
    • United States
    • North Carolina Supreme Court
    • 25 Noviembre 1936
    ...merely the motive for the commission of the tort." Columbia Nat. Bank v. Rizer, 153 S.C. 43, 150 S.E. 316, 68 A.L.R. 443; Watts v. Gantt, 42 Neb. 869, 61 N.W. 104, 107; Bank of Charleston v. Bank of Neeses, 127 S.C. 210, 119 S.E. 841; Hendrickson v. Smith, 111 Wash. 82, 189 P. 550; Lyric Pi......
  • Request a trial to view additional results

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