Reynolds v. Dietz , 34 Neb. 265 ( 1892 )

Maxwell, Ch. J.

This is an action to foreclose a mortgage upon real estate. The mortgage was executed by G. P. Dietz and E. M. Stickney upon the south half of the south half of section 8, town 7, range 9 west, of the sixth principal meridian, excepting, however, the west eighty acres of above contrac heretofore conveyed, and also subject to the right of way privileges granted to the Republican Yalley Railroad Company by deed dated March 18, 1886, and recorded at book 26, page 270, of the records of Adams county, Nebraska. This mortgage is given in part of purchase money of above described premises. The above mortgage was executed on the 29th of March, 1887, to secure the notes of Dietz and Stickney, due in one, two, and three years, each for the sum of $2,875. It is alleged in the petition that on the 14th day of June, 1887, Gould P. Dietz, Lenora A. Dietz, his wife, and Edward M. Stickney, and Carrie Stickney, his wife, sold, transferred, and conveyed for a valuable consideration, the tract of land above described to H. Bostwick, trustee, one of the defendants herein named, by deed dated June 14, 1887, and recorded in book 31, page 164, of the records of Adams county, Nebraska; that in said deed there is the following covenant and agreement, and subject to a certain mortgage of $8,625, dated March 29, 1887, and due in one year, two years, and three years from date respectively, with interest at the rate of eight per cent per annum from date, all of which the said H. Bostwick, trustee, agrees to assume and pay, with interest accrued, as a part of the purchase price of said premises, said mortgage executed by G. P. Deitz and E. M. Stickney to Lewis D. Reynolds; that plaintiff is now informed, believes, and is ready to prove that the deed was taken by H. Bostwick, trustee, for Frank C. Fry, James C. Ray, H. Bostwick, Joseph Boehmer, B. J. Brotherton, Thomas Hyde, Alexis Halter, Mark Levy, W. H. Fuller, and Alice Sawyer, the other defendants in this case; that this deed was made to H. Bostwick, and at the special instance and request of the said cestuis que trust, the other defendants aforesaid, and for their benefit, the said H. Bostwick agreed to assume and pay this said mortgage of $8,625 to the plaintiff aforesaid; that by said deed and the acceptance thereof the said H. Bostwick and the cestúis que trust, defendants aforesaid, did assume and become personally responsible for the payment of said mortgage of $8,625, given by Gould P. Dietz and E. M. Stickney to Lewis D. Reynolds, plaintiff; that on the 11th day of July, 1887, the said H. Bostwick, trustee, by deed of that date, conveyed, or attempted to convey, said real estate above described to Everett C. Sawyer, trustee; that the defendant Harrison Bostwick, trustee, Everett C. Sawyer, trustee, Alice E. Sawyer, Frank C. Fry, James C. Kay, George A. Stickney, B. H. Whitney, Joseph Boehmer, B. J. Brotherton, Thomas Hyde, Alexis Halter, Mark Levy, Abraham Loeb, and William H. Fuller, have or claim some lien or interest in said premises herein-before described, thus conveyed by said mortgage, but whatever, if any, such claim or lien may be, this plaintiff avers that it is in fact and in law subsequent and subject to the lien or claim of the plaintiff thereon as hereinbefore stated.

Everett C. Sawyer, in his answer, denies each and every allegation in the petition, and, second, pleads a counterclaim of $1,000 for services rendered by him in performance of the duties of an alleged trust.

Alice E. Sawyer disclaims any interest in the premises.

Abraham Loeb, Mark Levy, James O. Kay, W. H. Fuller, Joseph Boehmer, Alexis Halter, W. J. Brotherton, and Thomas H. Hyde filed answers denying the allegations of the petition.

Upon the issues thus found the case was tried. The court found that there is due to the plaintiff from the defendants G. P. Dietz, Edward M. Stickney, and Harrison Bostwick, the sum of $7,194, with interest at eight per cent from May 20,1889, and that there will be due on the 29th day of March, 1890, $2,907 with interest at eight per cent from May 20, 1889, or $2,875; that the defendant Sawyer takes nothing by his cross-petition, and that the other defendants Everett G. Sawyer, Alice E. Sawyer, Frank C. Fry, James C. Kay, George A. Stickney, B. H. Whitney, Joseph Boehmer, B. J. Brotherton, Thomas Hyde, Alexis Halter, Mark Levy, Abraham Loeb, and W. H. Fuller are not liable in this case.

A motion is now made by four of the defendants to quash the bill of exceptions because it was not served upon them for correction or amendment before being signed by the judge. In this case, by stipulation, it was signed by the clerk. The motion must be overruled. The action was brought by the plaintiff against all the defendants to subject the land in suit to the satisfaction of the mortgage. The trustee represented the eestuis que trust, and, except in a contest between them, service of the bill of exceptions on him will be sufficient.

The bill of exceptions seems to be in proper form, and there is no claim that aught has been improperly included therein. The record necessarily brings up the entire case. This principle was recognized in Taylor v. Courtnay, 15 Neb., 190.

It is unnecessary to review the testimony at length. Taking the entire testimony together it clearly establishes' the following facts :

First — That the land in question was bought as a speculation, and a value placed upon it of $20,000.

Second — That the eestuis que trust named, except Everett Sawyer, who purchased a twentieth interest therein, each took a tenth share in the property, for which he agreed to pay the sum of $2,000.

Third — That deducting the amount of the mortgage each one paid the amount of the stock, being $1,140. .

Fourth — That the title was taken in the name of Bostwick as trustee as a matter of convenience in making transfers.

Fifth — That any one of the eestuis que trust could require Bostwick to convey to him his interest in the land subject to the mortgage.

The case does not differ, therefore, in principle from that of Bear v. Koenigstein, 16 Neb., 65. That trust results from the purchase and payment of the money.

In the case at bar the proof clearly shows that the oestuis que trust named each purchaser and paid for one-tenth portion of the land, and agreed to pay the mortgage as a part of the consideration. It is true the title was taken in the name of another, but such title is held in trust for the parties who advanced the consideration. (Willis v. Willis, 2 Atk. [Eng.], 71; Botsford v. Bun, 2 Johns. Ch. [N. Y.], 405; Bear v. Koenigstein, 16 Neb., 65.) Each of the shareholders is still indebted upon the purchase in the sum of' $860. It seems probable that the land will not sell at forced sale for sufficient to satisfy the mortgage. Should this be the case, judgment for the deficiency may be rendered against each of the shareholders, in proportion to the share held by each. The purchasers are not jointly liable, however, but severally in- proportion to the interest purchased, or should there still be a deficiency after exhausting the remedy here provided, the defendants Dietz and Whitney will be liable for the same. The counter-claim of the defendant Sawyer was properly disallowed, as the only contract proved was made with Bostwick, and apparently without authority. It is probable that Bostwick is liable for such services. The claim that Bostwick purchased the property for $14,000, and sold it to the cestuis que trust for $20,000, is not put in issue by the pleadings, and cannot be considered in this case. If he has been guilty of improper conduct, which the proof does not-show, an action for an accounting will lie against him. The judgment of the district court is reversed, and judgment will be entered in this court in conformity to this opinion.

Judgment accordingly.

The other judges concur.