Hannan v. Rihner

114 N.W. 605, 80 Neb. 521, 1908 Neb. LEXIS 18

• Court: Nebraska Supreme Court
• Decided: January 8, 1908
• Docket: No. 15,041
• Status: Published

Opinion

Ames, C.

In October, 1904, one Peter B. Jacobs obtained from one Samuel Rihner a conveyance of a tract of land in Sarpy county in this state, upon which he afterwards executed a mortgage as security for an indebtedness to the plaintiff in this action for the sum of $2,100 represented by a note given by Jacobs to the plaintiff for that amount. Still subsequently, the heirs at law of. Rihner, in an action begun by him, procured a decree setting aside the conveyance as having been fraudulently obtained and quieting the title in themselves. To that proceeding the plaintiff in this action, which is for the foreclosure of that mortgage, was not a party, but the decree above mentioned was entered upon a compromise and settlement by which the plaintiffs therein promised to assume and pay the mortgage indebtedness now in suit. It is now contended that the instruments in suit were given in whole or in part in consideration of a former indebtedness on account of Avhich Jacobs did not obtain credits, aggregating $40, to Avhich he was entitled, and that prior to the entry of said decree the plaintiff had a lien on a fund belonging to Jacobs, and amounting to $236.50, which he Avas entitled to appropriate toward the payment of the debt now in suit, but that he negligently or wrongfully omitted to make such appropriation. The trial court declined to alloAv these items, or any of them, as credits upon or in reduction of the mortgage debt, and rendered a decree of foreclosure for the full amount of the latter with interest. The defendants appealed.

We think the trial court did not err. The compromise and settlement of the former litigation, resulting in a decree quieting the title of the plaintiffs (defendants herein), was a sufficient consideration for their promise to pay the obligation now in suit, and Avhether that obligation is just as against Jacobs, or Avhether the payment then made will be in whole or in part for his use or benefit, is a matter in which they have no concern. Neither the one case nor (he other would absolve them from their own agreement, AArhich Avas, in effect, to discharge the lien of the mortgage according to its terms.

We therefore recommend that the judgment of the district court be affirmed.

Faaycett and Calkins, CC., concur.

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

Affirmed.