Havemeyer v. Dahn

67 N.W. 489, 48 Neb. 536, 1896 Neb. LEXIS 105

• Court: Nebraska Supreme Court
• Decided: May 19, 1896
• Docket: No. 6309
• Status: Published

Opinion

Ragan, 0.

Jobn C. Havemeyer brought this suit in équity in the district court of Douglas county against Marcus Dahn and Barbara Dahn, his wife, to foreclose a real estate mortgage. A corporation known as the O. F. Davis Company and a copartnership known as Storz & Iler were also made defendants to the action. The latter two filed cross-petitions, by which they also sought to foreclose mortgages held by them upon the real estate of Dahn. By the decree of the district court Havemeyer and the O. F. Davis Company were given liens upon the real estate as prayed for in their petition and cross-petition; but the district court denied the prayer of the cross-petition of Storz & Iler and dismissed the same and from this decree they have appealed.

It appears from tbe special findings of tbe district court that one Kopald was indebted to Storz & Her, and as an evidence of tbis indebtedness be executed to them bis note and tbis note was signed by tbe appellee, Marcus Dabn, and a note secured by a mortgage upon tbe homestead of Dabn and wife to Storz & Iler. Tbe notary public wbo took the acknowledgment of tbis mortgage was an attorney at law, and tbe attorney and agent of Storz & Iler for tbe purpose of collecting tbe debt owing to them from Kopald, and procured Dabn and bis wife, as they alleged, by fraud and false representations, to execute tbe mortgage. Tbe learned district court was of opinion that because tbe notary public wbo took tbis acknowledgment was tbe agent and attorney of tbe mortgagee, be was therefore disqualified to take tbe acknowledgment, and tbe mortgage being upon a homestead was void. In Horbach v. Tyrrell, 48 Neb., 514, banded down at tbis sitting of tbe court, we decided that a notary public was not disqualified from taking an acknowledgment of a mortgage made to a corporation of which be was secretary and treasurer, it not appearing that be was a stockholder in such corporation or otherwise beneficially interested in having tbe conveyance made. In tbe case at bar it is not found that tbe notary and attorney wbo took the acknowledgment of Dabn and bis wife bad any beneficial interest in having tbe mortgage made. It is true that be was agent and attorney for Storz & Her, but it does not appear that tbe amount of bis compensation in any manner depended upon bis procuring tbis mortgage or collecting tbe debt which it represented. Following Horbach v. Tyrrell, tbe decree appealed from is reversed and tbe cause remanded to tbe district court for further proceedings.

Reversed and remanded.

Irvine, C., not sitting. Ryan, C., dissents.