Theisen v. Peterson

Day, J. On June 2, 1921, Anna Theisen brought an action in the [151] district court for Pierce county against John Peterson to foreclose a chattel mortgage for $16,000, alleged to have been given to her by Peterson to secure a note of like amount due January 1, 1922. The mortgage covered certain live stock, grain and farm machinery. The plaintiff based her right to foreclose upon the alleged ground'-'that Peterson had disposed of a part of the mortgaged property; that the property was not being properly cared for and that there was danger of the security being lost. The Security State Bank intervened, claiming that it was the holder of the note and mortgage; that it held them as collateral security for certain notes executed to the bank by Anna Theisen and Casper Theisen aggregating $15,900. In addition to the foreclosure the plaintiff, as well as the intervener, prayed that a receiver be appointed to take charge of the mortgaged property. Later the Security State Bank commenced an action in the district court for Pierce county against John Peterson to foreclose a real estate mortgage of $54,000 upon a half section of land in Pierce county. Peterson filed answers in the two actions, alleging in substance that the notes and mortgages were given as a part of a transaction between himself and Casper Theisen, wherein the parties were making an exchange of their respective properties. Peterson was exchanging his equity in certain lands, live stock and farm implements, located in Harrison county, Iowa, which, for the purpose of trade, were valued at $40,235, for Theisen’s equity in certain lands, live stock and farm implements, located in Pierce county, Nebraska, which, for the purpose of exchange, were valued at $108,235. To adjust this balance Peterson gave a chattel mortgage of $16,000 and a real estate mortgage of $54,000. The mortgage was given for $54,000 instead of $52,000 to adjust some difference which subsequently arose. Peterson further alleged that as inducement to making the exchange Theisen made false and fraudulent statements upon which Peterson relied in making the exchange; that, by reason of [152] the false and fraudulent statements made by Theisen, Peterson claimed that he was damaged in the transaction in an amount in excess of the two notes. The answer further alleged that the bank was not a bona fide holder of the notes; that, while Anna Theisen was named as payee in the notes, they were in fact owned by Casper Theisen, and that Anna Theisen paid no consideration for having the notes and mortgages made payable to her. Peterson prayed that the notes and mortgages be canceled, and that he have personal judgment against Theisen for the amount of his damages after deducting the amount of the canceled notes. In the answer Peterson also asked that a receiver be appointed to take charge of the property covered by the chattel mortgage. While the cases were pending the chattel property was sold by the receiver, and upon an order of the court $8,452.08 was turned into court. The two cases were consolidated and tried on January 26, 1923, but for some reason the decree was not entered Df record till April 30, 1923. The decree found that the bank was a bona fide owner of the $16,000 note and mortgage and also the $54,000 note and mortgage; that while the instruments appeared upon their face to have been executed January 1, 1921, they were not in fact executed till February 25, 1921; that before the $16,000 note was transferred to the bank as collateral security a payment of $1,400 had been indorsed thereon as of the date of its execution. The court further found that the indebtedness of Anna and Casper Theisen for which the collateral notes were given amounted to $16,509.45. The court ordered that $7,000 of the amount paid into court by the receiver should be credited upon the $16,000 note and after deducting the credit of $1,400 indorsed thereon found that there wás a balance due on the $16,000 note of $9,983.12. The court further found that there was due upon the $54,000 note the sum of $63,003.80 and decreed a foreclosure of the real estate mortgage. The court found against Peterson upon the issues presented by his answer and cross-petition. The [153] court further found that, after satisfying the amount due the bank, the balance of the proceeds of the sale should be paid to Anna Theisen to the extent of the amount found to be due her, and that the surplus, if any, should be paid to John Peterson, and entered decree accordingly. From this decree Peterson has appealed. At the outset we are met by .the objection, on the part of the Security State Bank and Anna Theisen, that we are precluded from examining the issues presented by this appeal, because Peterson had filed, following the decree, a request for a stay of the order of sale. The record shows that on February 15, 1923, Peterson filed a request for a stay of the order of sale as provided in section 8988, Comp. St. 1922. The mere filing of this request, as a matter of law, operates as a stay of the order of sale for a period of nine months, without any action of the court. Section 8991, Comp. St. 1922, which refers to a stay of an order of sale in foreclosure proceeding, in so far as applicable to the present discussion, provides as follows: “No proceedings in error or appeal' shall be allowed after such stay has been taken.” The question presented by the objections of the appellees has been several times considered by this court. In Lackey v. Yekel, 113 Neb. 382, it was held: “The taking of a stay of sale at the time or after a decree is entered, granting foreclosure of a mortgage and appointing a receiver, waives all previous errors which may have occurred in appointing the receiver, as well as in granting the foreclosure.” In Ecklund v. Willis, 42 Neb. 737, it was held that the filing of á stay of sale is a waiver of the right to have reviewed any of the proceedings in the case prior to the taking of such stay. • In Gilbert v. Provident Life & Trust Co., 1 Neb. (Unof.) 282, it was held: “When defendants in a suit to foreclose a mortgage avail themselves of the statutory stay of judgment, they are estopped from attacking such judgment in any manner.” It would seem that, by the plain provisions of the statute, as well as our decisions construing the same, we are precluded from examining the issues presented by the answer and cross-petition of Peterson. [154] From what has been said, it would seem to follow that the judgment of the district court should be, and it is, Affirmed.