Omaha daily bee., 1896-11-28
COUNCIL BLUFFS DEPARTMENT
IMPORTANT POINT IN LAND LAW.
Judge Green Decides n Question of
SnIcs Inhcr MnrIpnnc.

|
| Sales Under Mortgage.
Judge Smith handed down decision yes
terday in the case OF Wilbur w Holcomb
| against Daniel Dull and others. The case
| involves the foreclosure OF a mortgage on
! 400 acres of land in this county. The
principal with accrued interest, amounts
20 about $4,000 on the loan, which was
mado in 1856 In June, 1889 Dull sold SOL
acres Of the land to John Il. Blackman and
In February, 1892, notice Of this purchase
was sont to Hocomb by Backman. Several
months subsequent to this notice Dull sold
more OF the land to Grabill and Hopping.
These sales amounted to about 440 acres.
At the time the deeds to these lands were
filed releases were given by lIolcomb to the
purchasers The title to the lands sold to
Blackman by Dull passed into the possession
Of Phelon Duffy & Savage, who appear as
Interested parties in the foreclosure pro-
cc2dngs. They Insisted that before the
mortgage was brought in force as against
their portion Of the 1,400 acre tract that
the plaintiff exhausted the full value of the
land sold to Grabll and Hopping, which
he released. In the settlement of this point
an interesting proposition of law was de-
veloped and one that the courts of Iowa
have never been called upon to determine.
Judge Smith dwells at length on the ques-
tion raised and his decision handed down
yesterday sustains the position of Phelon,
Duffy & Savage. They insisted that the
value of the land released must be credited
on the mortgage to its full value and not
prorated, as asked by the plaintiff
In deciding the point Judge Smith called
attention to the laws of the state regarding
tho foreclosure OF mortgages in case the
original property given as security has been
sold in parcels. The rule of all the states
except Iowa and Kentucky Is that the burden
of the mortgage shall rest upon the tracts
in the inverse order of their date of sale.
The Iowa courts hold that the various tracts
shall be imposed with the burden pro rata,
and this was the position taken by the
plaintiff In the present suit. Judge Smith
held that inasmuch as the sale of the Gra-
bill and Hopping tracts was made subse-
quent to the Blackman sale, the full value
Of the land last sold should be credited on
the mortgage before any of its burden
should be established against the Blackman
tract A decree of foreclosure will be
drawn up by the attorneys in the case in
accordance with Judge Smiths holding on
this point
In the case of the Security Savings and
Loan association against Patrick Lyons a
decree of foreclosure was rendered.
A landlords writ of attachment was sued
out yesterday in the district court by s. NJ.
Sorenson against John Nelson. The defend
ant rented the plaintiffs farm in Februar",
1895, and has failed to pay his rent to the
amount of $342,92.
The Milwaukee Harvester company was
given judgment against A. C. Jensen and
others for $53 on a note.
The sealed verdict in the case of John
p. Martin against Anna b. Shugart was
opened by Judge Green yesterday morning
The plaintiff was given judgment for $135
The suit involves some real estate commits
sion on the sale of lands near Missouri
Valley.
The case of James Weston against Charles
p Braslan and others is on trial in the
district court.
Removal sale of furniture. S36-33S Broad