Whitney v. Lowe

• Citation: 80 N.W. 266,59 Neb. 87
• Parties: WHITNEY ET AL. v. LOWE ET AL.
• Decision Date: 05 October 1899
• Court: Supreme Court of Nebraska

59 Neb. 87

80 N.W. 266

WHITNEY ET AL.

v.LOWE ET AL.

Supreme Court of Nebraska.

Oct. 5, 1899.

Syllabus by the Court.

1. The record of a mortgage is constructive notice of the existence of the debt which the mortgage was given to secure.

2. The assignment of coupons secured by a mortgage is, pro tanto, an assignment of the mortgage.

3. The release of a mortgage by one who is not the owner of the debt, although possessed of apparent authority to enter satisfaction, is ineffective, except as to those who deal with the property relying in good faith upon such release.

Appeal from district court, Douglas county; Keysor, Judge.

Foreclosure suit by Milton B. Whitney and others against Sallie H. H. Lowe and another. Judgment for defendants, and plaintiffs appeal. Reversed.D. M. Vinsonhaler and Edward C. Wright, for appellants.

Meikle & Gaines and F. B. Tiffany, for appellees.

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 Sallie H. H. Lowe and William W. Lowe sold and conveyed said land to John L. Welsh, as alleged in paragraph 11 of said petition, that 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 nonpayment 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...