De Witt v. Wheeler

• Decision Date: 12 May 1885
• Citation: 23 N.W. 506,17 Neb. 533
• Parties: DE WITT v. WHEELER.
• Court: Nebraska Supreme Court

17 Neb. 533

23 N.W. 506

DE WITT

v.WHEELER.

Supreme Court of Nebraska.

Filed May 12, 1885.

Error from Saline county.

E. S. Abbott, for plaintiff.

F. I. Foss, Hastings & McGintie, M. B. C. True, and J. C. Smith, for defendants.

MAXWELL, J.

In May, 1876, one R. F. Kortright executed a promissory note for the sum of $90 to the Wheeler & Wilson Sewing Machine Company. On the twelfth day of August, 1878, said company recovered a judgment against Kortright for the sum of $100, and costs on said note. A transcript of said judgment was duly filed in the district court of that county on the fifteenth of that month. In July, 1876, Kortright executed a promissory note to Fuller and Johnson for the sum of $98.25, and in December of that year they recovered judgment thereon before a justice of the peace. A transcript of said judgment in August, 1879, was duly filed in the office of the clerk of the district court of that county. In August, 1879, J. C. Norris recovered a judgment against Kortright before a justice of the peace for the sum of $10, on a debt which accrued in the summer of 1877, and costs. A transcript of the judgment was duly filed in the office of the clerk of the district court. On the fifth day of July, 1878, Kortright executed a promissory note to Hattie E. Burley for the sum of $225, due in four years from date, with interest at 12 per cent. To secure the payment of this note, Kortright and wife executed a mortgage upon 80 acres of land in Saline county. The note and mortgage were afterward assigned to Henry E. Fletcher, who in February, 1883, brought an action to foreclose the same, and Abram L. De Witt, Wheeler & Wilson, Fuller & Johnson, and J. C. Norris were made defendants. A decree of foreclosure was afterwards rendered, in which the judgments in question were held to be valid liens upon the premises. From that portion of the decree declaring the judgment liens on the land in controversy, the owner of the equity of redemption, Abraham L. De Witt, appeals.

The case was tried upon a stipulation of facts, from which it appears that in 1876 “Kortright owned 80 acres of land in another part of the county, and occupied the same as a homestead; that he sold that and bought in the land in dispute, July 5, 1877; that on the fifth day of July, 1877, Robert F. Kortright bought the land described in the plaintiff's petition in fee, and with his then wife, Catherine E. Camern, and her minor children by a former marriage, moved onto the same and resided thereon as his home (having no other land or house) until early in the summer of 1878. He then rented the farm and moved into the city of Crete,...