Whitney v. Lowe

• Decision Date: 05 October 1899
• Docket Number: 8,939
• Citation: 80 N.W. 266,59 Neb. 87
• Parties: MILTON B. WHITNEY ET AL. APPELLANTS, v. SALLIE H. H. LOWE ET AL. APPELLEES
• Court: Nebraska Supreme Court

80 N.W. 266

59 Neb. 87

MILTON B. WHITNEY ET AL. APPELLANTS, v. SALLIE H. H. LOWE ET AL. APPELLEES

No. 8,939

Supreme Court of Nebraska

October 5, 1899

APPEAL from the district court of Douglas county. Heard below before KEYSOR, J. Reversed.

REVERSED AND REMANDED.

D. M Vinsonhaler and Edward C. Wright, for appellants.

Meikle & Gaines and F. B. Tiffany, contra.

OPINION

SULLIVAN, J.

This action was brought to foreclose a real estate mortgage given by Sallie H. H. Lowe and her husband, William W. Lowe, to the Lombard Investment Company. The debt secured was evidenced by a coupon bond for the principal sum of $ 60,000. The appellants are the receivers of the mortgagee, and have succeeded to its rights. The Presbyterian Hospital of Philadelphia became, by purchase and assignment, the owner of the bond and mortgage. The investment company, having guarantied payment of the debt, both principal and interest as the same should mature, was obliged, under its contract to take up two coupons representing interest installments, upon which the mortgagors had defaulted. Afterwards John L. Welsh bought the mortgaged premises, paid the amount due the Presbyterian Hospital, and obtained from it a release of the mortgage. The balance of the consideration was applied to the payment of other liens against the property. To defeat this suit, which was brought to collect the coupons redeemed by the mortgagee, Welsh relies on the release and the fact that he did not actually know that the coupons were outstanding. The material part of the answer is as follows: "These defendants further say that at the time Sally H. H. Lowe and William W. Lowe sold and conveyed said land to John L. Welsh, as alleged in paragraph 11 of said petition, the mortgage described in said petition was fully released of record by the Presbyterian Hospital of Philadelphia, and that these defendants had no knowledge or information whatever as to the non-payment of the coupons held by the plaintiffs herein, and that in the purchase of said property said defendant John L. Welsh relied wholly upon the title as it appeared of record in the office of the register of deeds of Douglas county, Nebraska, at that date, and that he did not know that the plaintiffs herein claimed any interest therein, or any lien thereon, until long after said property was conveyed to him, and the purchase-money for the same paid in full." The district court denied the specific relief demanded in the petition, and the plaintiffs bring the record here for review by appeal.

We find in the bill of exceptions an express admission that the Lowes sold and conveyed the mortgaged premises to Mr. Welsh on March 21, 1894, and that the release was not executed until...