Goos v. Goos , 57 Neb. 294 ( 1898 )

Irvine, 0.

Tlie main object of this action was to foreclose a mortgage, but the complications are such that its precise nature may be best disclosed by a short analysis of the pleadings. The plaintiff Anna Goos alleged that in 1891 she became the owner of certain described land in Cass county. May 3, 1893, she sold and conveyed the land to Hans Goos for the sum of $8,000. The consideration was arranged by his paying $1,000, assuming an existing mortgage of $1,000, and executing his notes for $6,000, secured by mortgage on the land. It is charged that this mortgage plaintiff, after its delivery, committed to the custody of the mortgagee for the purpose of having it recorded, and that he failed to cause it to be recorded, a fact not known to plaintiff until the autumn of 1894. It is next alleged that October 20, 1894, Hans Goos and William Weber conspiring to defraud plaintiff, Hans executed to Weber a mortgage for $1,000, which Weber, November 15, 1894, assigned to the Krug Brewing Company, the mortgage and assignment being both recorded. It is charged that the brewing company knew of plaintiff’s mortgage and of all the facts. It is further charged that thereafter Hans Goos, contriving to induce plaintiff to assume the Weber mortgage, fraudulently induced her to accept a reconveyance of the land, together with Hans’ notes for $250. The prayer was for a rescission of the last contract and a foreclosure of the plaintiff’s mortgage to the exclusion of that to Weber. The answers of the several defendants deny all charges of fraud, allege a consideration for the Weber mortgage and its assignment, and charge that as a part of the contract whereby the land was reconveyed to plaintiff, and in consideration thereof, and of Hans’ notes for $250, plaintiff assumed and agreed to pay the Weber mortgage. The reply reiterates the charge that the last contract was obtained by fraud. The district court found that Hans fraudulently neglected to file plaintiff’s mortgage for record; that it created a vendor’s lien; that the Weber mortgage was executed to secure a pre-existing debt and future advances, with the intention on Hans’ part to defraud plaintiff; that Weber knew of plaintiff’s mortgage, but that the brewing company did not; that the assignment to the latter was to secure a pre-existing debt of Weber; that the settlement, whereby the land was reconveyed and the mortgage assumed, was without consideration and fraudulent. A foreclosure of both mortgages was decreed, the plaintiff to have priority.

Many interesting questions are presented by the record and ably argued in the briefs; but the conclusion reached on one branch of the case renders unnecessax’y the consideration of other phases. It is now the well settled law of this state that where one makes a promise to another for the benefit of a third person, the third person may enforce it, although not a party to the consideration. {Morrill v. Skinner, 57 Neb. 164, and cases there cited.) This rule has several tixnes been applied to cases where one accepts a conveyance of land, and as part of the consideration agrees to pay an existing incumbrance thereoxx. The mortgagee nxay enforce the promise. {Rockwell v. Blair Savings Bank, 31 Neb. 128; Cooper v. Foss, 15 Neb. 515; Reynolds v. Dietz, 39 Neb. 180; Meehan v. First Nat. Bank of Fairfield, 44 Neb. 213.) Even where there has beexx no agreement to assxxme and pay the debt, a purchase wherein aix apparexxt lien has been recognized as valid, and allowed for in fixixxg the price, has been held to estop the purchaser fronx denying its validity. (Koch v. Losch, 31 Neb. 625.)

It follows that if the contract whereby the land was reconvc-wed was not open to rescission for fraxxd, it constituted a bixxding obligation xxpon the plaintiff to discharge the Weber mortgage, and it is immaterial whether, before that agTeexnent, that mortgage was senior or junior to the plaintiff’s. The finding that there was no consideration for the agreemexxt is manifestly wrong. Plaintiff received the land and I-Ians’ notes for $250 as a consideration for the assumption of the Weber mortgage. Prom the cases already cited it follones that it was immaterial that, the holder of that nxortgage was not a party to the consideration, or that he did not know of the promise at the time it was made. We are thus relegated to an inquiry as to the fraud. Plaintiff knew long before this transaction that her mortgage had not been recorded; so that she was not induced to make the contract by any deception which had before been practiced upon her with regard to that fact. The only fraud charged in the petition is, first, that plaintiff relied on the validity of the Weber mortgage, and, secondly, that Hans threatened that unless she made the settlement lie would transfer the land or lease it for five years. The first charge-is flatly contradicted by the plaintiff’s own reply, where she says that she relied on Hans’ statement that he had. made the Weber mortgage only to cloud her title and force a settlement. These averments offset one another, but whichever may indicate plaintiff’s position it is insufficient. If she relied on the validity of -the Weber mortgage as charged in the petition, she relied on the truth, for it is shown that that mortgage was given for a Iona fide debt, and was undoubtedly good as between the pai’ties. It may have been in equity junior to plaintiff’s/ but there is no charge of any misrepresentation affecting the priorities. If, on the other hand, plaintiff relied qn Hans’ statement that the mortgage was invalid, as alleged in the reply, that would be a reason for not assuming it. If she were willing to pay it believing it to have been made solely to defraud her, she ought to be held to her bargain when the contrary appeared. The second charge shows no fraud. It was neither a false statement nor a suppression of the truth. It merely expressed a purpose to do what Hans had a right to do. He owned the laud and might convey it or lease it. If he should do either, it could not affect plaintiff if she then took the proper steps for her own protection. Such a threat does not constitute duress. Finally it may be said that the proof wholly failed to sustain such allegations as Avere made. The most that the evidence tended to show Avas that Hans told her that if she did not accept his proposition he “would beat her out of it,” whatever that may mean. It is quite evident that the plaintiff, with full knowledge of all material facts, and in the absence of anything approaching fraud or duress, for a sufficient consideration took back the land and agreed to pay the Weber mortgage; that the intention Avas thus to close matters with Hans, and to merge the plaintiff’s mortgage in the legal title, leaving the Weber mortgage as a valid, recognized subsisting lien. Neither on the face of the record nor by evidence did she show a right to the relief demanded.

It is argued that we are foreclosed by the condition of the record here from examining the question just decided. This is upon the theory that the breAving company alone appeals and that the case for rescission affects only the plaintiff and Hans Goos. The claim that the breAving company is the only appellant is founded on the fact that it alone gave a supersedeas bond. But a supersedeas is not necessary to an appeal. An appeal is taken by lodging a transcript in this court within the statutory period. When one party does so the other may avail himself of the same transcript for the purpose of an appeal on his OAvn-part, by simply filing in due season his briefs assailing the decree. _(McDonald v. Buckstaff, 56 Neb. 88.) Here all the defendants join in a brief, relying on the same grounds, and we have no other means of ascertaining who appeals. Furthermore, by virtue of the contract which it was sought to rescind, the brewing company, as holder of the mortgage, obtained a vested legal right, which it has a right to defend on its own behalf. The decree of the district court is reversed and the cause remanded with directions to dismiss plaintiff’s case and to award foreclosure of the Weber mortgage as prayed in the cross-petition of the defendant breAving company.

REVERSED AND REMANDED.