Bradfield v. Sewall

Harrison, C. J. This action was commenced for appellee in the district court of Lancaster county to foreclose a mortgage on the west half of the southwest quarter of section 31, township 10 north, of range 7 east of the 6th P. M., executed and delivered to him by Thomas Sewall and wife May 5, 1888. In an answer for the Mays, of defendants, it was asserted that Tillie May purchased five acres of the mortgaged land, the title to which was on February 3, 1890, conveyed to her by warranty deed. It was in a cross638 petition filed for the American National Bank and Charles G. Dawes, as trustee for the bank, pleaded that five acres of the mortgaged property was on January 2, 1891, sold and by warranty deed the title conveyed to Frank W. Little, who on April 14, 1894, had executed and delivered to Charles G. Dawes, trustee for said bank, a mortgage on the portion of the land in controversy, the title to which, it was pleaded, had been transferred to the mortgagor. In an answer for Annie McNally it was set forth that she purchased five acres of the land in suit and the title to said part was transferred to her by warranty deed of date August 3, 1891. There was an answer for Kate B. Cheney in which it was stated that she became the owner of, and acquired the title to, the remainder, or sixty-five acres, of the land, of date October 15,1894; that the conveyance to her was by warranty deed. It appeared and was of the findings of the court that Kate B. Cheney, by the terms of the conveyance to her, assumed and agreed to pay the plaintiff’s mortgage debt. In a pleading for the Union Savings Bank there was asserted an action in its behalf on May 7,1895, against Thomas Sewall and Florence A. Sewall for the recovery of an indebtedness, the issuance of attachment therein, and the levy of the writ on the land involved in the case at bar. It was further stated that for the Union Savings Bank there was, October 29, 1895, a judgment obtained against Thomas SeAvall and Florence A. Sewall. A decree was rendered in the case at bar by which there was adjudged a foreclosure of the plaintiff’s mortgage lien, the several pleaded convevauces were recognized, a sale was ordered in accordance with the rule of the inverse order of alienation, and the further litigation of the rights of the Union SaArings Bank was postponed. It was also of the decree that the lien, if any, of the Union Savings Bank was subsequent and inferior to the liens established in this action. In the appeal it is urged that the trial court should not have continued the matter of adjustment of the claim of [639] the savings bank, and could not properly do so. The future inquiry and ascertainment of and concerning the claim of lien for the bank could not affect the matters determined and settled by the decree; hence the action of the court, of which this complaint is made, was not improper. (Brown v. Johnson, 58 Neb. 222.) It is argued that the conveyance to Frank W. Little was not shown. It was pleaded and not denied. The court’s finding in this regard was in accord with the effect of the pleadings. The only further contention is directly against the recognition in the decree of the doctrine of “inverse order of alienation.” The rule has been very generally established and employed. (2 Pingrey, Mortgages sec. 1922; 2 Jones, Mortgages sec. 1621 and note 2; 9 Ency. PI. & Pr. 411, 412, where the reasons for the rule as stated in Iglehart v. Crane, 42 Ill. 261, are quoted and the authorities collected in note 1, page 412.) The doctrine was stated with approval in Lausman v. Drahos, 8 Neb. 461, and was referred to, although, because inapplicable, not enforced, in Hanscom v. Meyer, 57 Neb. 786, and has been treated as a settled question in this state by the federal court. (See Philadelphia Mortgage & Trust Co. v. Needham, 71 Fed. Rep. 597.) We think the rule supportéd by sound reasons, and approve it. The decree must be Affirmed.