Beebe v. Bahr

Nebraska Supreme Court

Beebe v. Bahr

120 N.W. 1021, 84 Neb. 191, 1909 Neb. LEXIS 189

CourtNebraska Supreme Court

DecidedApril 13, 1909

DocketNo. 15,632

StatusPublished

Cited by7 cases

This text of 120 N.W. 1021 (Beebe v. Bahr) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beebe v. Bahr, 120 N.W. 1021, 84 Neb. 191, 1909 Neb. LEXIS 189 (Neb. 1909).

Pincite

Opinion

Good, C.

Plaintiff brought this action in the district court for Keya Paha county to foreclose a mortgage on real estate [192]*192situate in said county. Defendants denied all the allegations of the petition, and averred that the mortgage lien had been extinguished in tax lien foreclosure proceedings had against the land subsequent to the execution of the mortgage. Defendants had judgment, and plaintiff has appealed.

It is unnecessary to consider any of the plaintiff’s assignments of error. Plaintiff’s petition contained the allegation that no suit, either in law or in equity, had been instituted for the recovery of the debt secured by the mortgage. This allegation of the petition was denied in the answer, and is not sustained by any evidence in the record. It has been repeatedly held by this court that the allegation, although a negative one, unless admitted, must be proved in order to entitle plaintiff to a decree of foreclosure. Jones v. Burtis, 57 Neb. 604; Kirby v. Shrader, 58 Neb. 316; Miller v. Nicodemus, 58 Neb. 352; Lancashire Ins. Co. v. Kierstead, 1 Neb. (Unof.) 437; Plummer v. Park, 62 Neb. 665; Omaha Savings Bank v. Boonstra, 3 Neb. (Unof.) 382; Hedbloom v. Pierson 2 Neb. (Unof.) 799; Drury v. Roberts, 2 Neb. (Unof.) 574.

It follows that the judgment of the district court is right, and we recommend that it be affirmed.

Duffie, Epperson and Calkins, CC., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is

Affirmed.

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Good, C.

Plaintiff brought this action in the district court for Keya Paha county to foreclose a mortgage on real estate [192]*192situate in said county. Defendants denied all the allegations of the petition, and averred that the mortgage lien had been extinguished in tax lien foreclosure proceedings had against the land subsequent to the execution of the mortgage. Defendants had judgment, and plaintiff has appealed.

It is unnecessary to consider any of the plaintiff’s assignments of error. Plaintiff’s petition contained the allegation that no suit, either in law or in equity, had been instituted for the recovery of the debt secured by the mortgage. This allegation of the petition was denied in the answer, and is not sustained by any evidence in the record. It has been repeatedly held by this court that the allegation, although a negative one, unless admitted, must be proved in order to entitle plaintiff to a decree of foreclosure. Jones v. Burtis, 57 Neb. 604; Kirby v. Shrader, 58 Neb. 316; Miller v. Nicodemus, 58 Neb. 352; Lancashire Ins. Co. v. Kierstead, 1 Neb. (Unof.) 437; Plummer v. Park, 62 Neb. 665; Omaha Savings Bank v. Boonstra, 3 Neb. (Unof.) 382; Hedbloom v. Pierson 2 Neb. (Unof.) 799; Drury v. Roberts, 2 Neb. (Unof.) 574.

It follows that the judgment of the district court is right, and we recommend that it be affirmed.

Duffie, Epperson and Calkins, CC., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is

Affirmed.

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Bluebook (online)

120 N.W. 1021, 84 Neb. 191, 1909 Neb. LEXIS 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beebe-v-bahr-neb-1909.

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