Whipple v. Fowler

CourtSupreme Court of Nebraska
Citation41 Neb. 675,60 N.W. 15
PartiesWHIPPLE v. FOWLER.
Decision Date18 September 1894

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Where, upon the trial of an action, testimony is admitted without objection, it is not error for the court to permit the pleadings to be amended to conform to the testimony.

2. In a cause tried to the court without the intervention of a jury, the admission of incompetent testimony is not reversible error.

3. Where a mortgagee excutes a release of a mortgage, and places the same in the hands of a third party, to be delivered to the mortgagor upon his paying the mortgage debt, which condition the mortgagor never performed, and the release is placed upon record without the knowledge or consent of the mortgagee, neither the mortgagor, nor one who is not a bona fide purchaser without notice, will acquire any rights or advantage by the recording of such release.

4. A mortgage of real estate is regarded as a mere incident of the debt, which, by the legal transfer of the debt, passes with it to the assignee.

5. A satisfaction entered on the record by a mortgagee, after he has sold and delivered the notes secured by the mortgage to a third party, will protect a subsequent mortgagee in good faith, or bona fide purchaser, of the mortgaged premises, in case he had no notice at the date of the purchase, or the payment of the consideration, that the debt was assigned, or was unpaid, or that the release was unauthorized; but as to all other persons the lien of the mortgage will not be impaired.

6. In the state of Iowa the rule is that the transfer of one of several notes, maturing at different times, and secured by the same mortgage, operates as an assignment pro tanto of the mortgage, and that the proceeds arising from the sale of the mortgaged property would be applied first to the payment of the notes in the order of time in which they fell due. But in this state, in such a case, the several holders are entitled to share pro rata in the proceeds.

7. In the construction by the courts of this state of a mortgage executed in Iowa upon real estate situate in that state, the lex rei sitae, or the law of Iowa, governs.

Error to district court, Lancaster county; Tibbets, Judge.

Action by Orin P. Whipple against Lucy D. Fowler to recover damages for the wrongful release of a certain mortgage to defendant, after she transferred to plaintiff two notes secured thereby, and before such notes were paid. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Mockett, Rainbolt & Polk, for plaintiff in error.

Lamb, Ricketts & Wilson, for defendant in error.

NORVAL, C. J.

This was an action to recover damages for the wrongful releasing of record of a certain real-estate mortgage by Lucy D. Fowler, the mortgagee, after she had transferred to the plaintiff, Orin P. Whipple, two of the promissory notes secured by said mortgage, and before said notes had been paid. Upon a trial to the court there was judgment for the defendant, to reverse which the plaintiff prosecutes error to this court.

The undisputed facts, as disclosed by the record, may be summarized thus: M. C. and A. A. Hazzard, on the 16th day of October, 1888, executed and delivered to the defendant their 34 promissory notes, aggregating the sum of $7,000,--one for the sum of $500, due February 12, 1889; $100, maturing March 12, 1889; and the remaining 32 notes, for the sum of $200 each, one payable on the 12th day of April, 1889, and one falling due on the 12th day of each month thereafter. To secure the payment of the said several notes, the Hazzards executed and delivered to the defendant a mortgage on the lots 841, 842, and 843, in the town of Shenandoah, Page county, Iowa, which instrument was duly recorded in the recorder's office of the said county on November 13, 1888. Subsequently the mortgagee, Lucy D. Fowler, sold and transferred several of the said notes to different parties, the two maturing May 12, 1890, and June 12, 1890, respectively, being transferred by her by indorsement without recourse to the plaintiff, Orin P. Whipple, on the 4th day of December, 1888. No formal assignment of the mortgage to the plaintiff was made. The remaining 22 notes secured by said mortgage, and being the ones last falling due, which were held and owned by the defendant, were sold and transferred by her to one T. J. Evans on the 29th day of December, 1888; and on the same day, without the knowledge and consent of plaintiff, she executed and acknowledged a written release, or satisfaction, of said mortgage, which was filed for record in the office of the recorder of said Page county on January 21, 1889. Afterwards, on the 13th day of July, 1889, the Hazzards conveyed the lots covered by said mortgage to one W. H. Wright, which conveyance was recorded on the 15th day of the same month. The two notes transferred to the plaintiff remain wholly unpaid, although judgment has been recovered thereon against the makers, and execution has been issued on such judgment, which was placed in the hands of the sheriff, and the same has been by him returned wholly unsatisfied. At the time of the release of the mortgage the Hazzards were insolvent, and so have been ever since. The sum of $2,600 was due on the mortgage prior to the notes transferred to and held by plaintiff. It is admitted by both parties that there is upon record a mortgage of $5,000 on the property, given by one Parks to one Kennedy, which is wholly unpaid, and which is prior in point of time to the said mortgage of the Hazzards to Fowler. The foregoing facts appear without controversy. In fact the only substantial conflict in the testimony is upon two points, namely, the value of the mortgaged premises, and the facts and circumstances surrounding the execution of the release of the mortgage in controversy, which will be adverted to hereafter.

We will notice the several errors relied upon for a reversal of the judgment, although we will not attempt to follow the order in which they are discussed in the brief of plaintiff. We will first consider the objection urged to allowing the defendant to amend her answer during the trial to correspond with the evidence introduced. The plaintiff had alleged in his petition in the court below--which the original answer, when first filed, admitted to be true--that by the laws of the state of Iowa the transfer of one of several notes secured by the same mortgage operates as a transfer pro rata of said mortgage. After the plaintiff had rested, the defendant, when making out her case, introduced, without objection, the opinion in the case of Walker v. Schreiber, reported in 47 Iowa, 529, for the purpose of showing that under the laws of that state, where a mortgage secures several notes, which are transferred to different persons, each holder of the note takes a pro tanto interest in the mortgage, and the note first maturing must be the first paid. The defendant was thereupon permitted by the court, over plaintiff's objection, to withdraw her said admission in the answer, and to amend her pleadings to conform to the evidence. This was proper, in accordance with a familiar and just rule in this state, of long standing, that, where testimony is received without objection, the court may permit the pleadings to be amended to conform to the facts proved. Keim v. Avery, 7 Neb. 54; Catron v. Shepherd, 8 Neb. 41, 1 N. W. 204;Brown v. Rogers, 20 Neb. 547, 31 N. W. 75;Ward v. Parlin, 30 Neb. 376, 46 N. W. 529.

Error is assigned upon the ruling of the court below in admitting the testimony of the defendant's witness George M. Traver on the question of the value of the mortgaged premises. It is insisted that the witness had not shown himself competent to testify upon that subject. We are satisfied that the criticism upon the ruling referred to is not without merit, and that Traver's testimony was incompetent, and should have been excluded; but it does not follow that the judgment should be disturbed for that reason. It is the established doctrine of this court that the admission of incompetent testimony, where the cause is tried to the court without a jury, is not sufficient ground for the reversal of the case. Enyeart v. Davis, 17 Neb. 228, 22 N. W. 449;Willard v. Foster, 24 Neb. 213, 38 N. W. 786;Richardson v. Doty, 25 Neb. 424, 41 N. W. 282;Ward v. Parlin, 30 Neb. 376, 46 N. W. 529;Stabler v. Gund, 35 Neb. 651, 53 N. W. 570. The reason for the rule given in the opinion in the cases cited need not be now restated. These authorities control the decision in the case before us upon the question under consideration.

Errors were likewise assigned upon admission, over the objection of plaintiff, of the testimony of several of the witnesses; but these rulings require no special attention, since they fall within the rule stated above.

It is urged that the judgment is unsupported by the evidence, and is contrary to the law of the case. It is undisputed that the defendant executed a release of the mortgage in controversy, and that the same was recorded in the proper county, prior to the transfer of the mortgaged premises to Wright. There is, however, an irreconcilable conflict in the testimony as to who placed the release upon record, how the same came to be executed, and whether there was an actual delivery of the release to Evans. The testimony adduced on the part of the plaintiff tended to show that there was no agreement between the defendant and Evans, at the time of the transfer of the notes by the former to the latter, that a release of the mortgage should be executed, but, on the contrary, the arrangement between them was that there should be executed an assignment of the mortgage to Evans; that defendant agreed to make it out, and carry the same to the county seat of Page county, Iowa, and cause it to be recorded; that Evans paid defendant the recording fees; that, instead of executing an assignment, a release of the mortgage was made, which was never delivered to...

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18 cases
  • Bolin v. Fines
    • United States
    • Nebraska Supreme Court
    • September 19, 1900
    ...a jury, is not cause for reversal. Stover v. Hough, 47 Neb. 789, 66 N. W. 825;Stabler v. Gund, 35 Neb. 648, 53 N. W. 570;Whipple v. Fowler, 41 Neb. 675, 60 N. W. 15;Tolerton & Stetson Co. v. McClure, 45 Neb. 368, 63 N. W. 791;Sharmer v. McIntosh, 43 Neb. 509, 61 N. W. 727. The reason for th......
  • Mulligan v. Snavely
    • United States
    • Nebraska Supreme Court
    • January 10, 1929
    ... ... record so as to impart constructive notice, plaintiff would ... have been protected thereby, as distinctly held in ... Whipple v. Fowler, 41 Neb. 675, 60 N.W. 15. But it ... is contended by [117 Neb. 770] defendant, supported by ... reasoning which to us is not persuasive, ... ...
  • Bolin v. Fines
    • United States
    • Nebraska Supreme Court
    • September 19, 1900
    ... ... Stover ... v. Hough, 47 Neb. 789, 66 N.W. 825; Stabler v ... Gund, 35 Neb. 648, 53 N.W. 570; Whipple v ... Fowler, 41 Neb. 675, 60 N.W. 15; Tolerton v ... McClure, 45 Neb. 368, 63 N.W. 791; Sharmer v ... Johnson, 43 Neb. 509. The reason for the ... ...
  • Mulligan v. Snavely
    • United States
    • Nebraska Supreme Court
    • January 10, 1929
    ...entitled to record so as to impart constructive notice, plaintiff would have been protected thereby, as distinctly held in Whipple v. Fowler, 41 Neb. 675, 60 N. W. 15. But it is contended by defendant, supported by reasoning which to us is not persuasive, that, though plaintiff might rely u......
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