Lipp v. Land Syndicate. proof was necessary, then the court erred in suppressing the deposition under the consideration. Having reached the conclusion that the true measure of damages in this case is the aggregate amount or face value of the negotiable securities delivered to the plaintiff by the said Wallace S. Smith, and received by the plaintiff in good faith within the time limited by the terms and conditions of said bond, and remaining unpaid at the time of the commencement of the suit, and not exceeding in the aggregate the sum of five thousand dollars, with interest, the alleged error on the part of the trial court, in refusing to instruct the jury to consider in their verdict the amount of certain property claimed to have been placed by the defendant, Wallace S. Smith, in the hands of his co-defendant, Mayberry, as an indemnity for his liability on said bond, will not be examined. The judgment of the district court is reversed and the cause remanded to that court for further proceedings in accordance with law. REVERSED AND REMANDED. THE other judges concur. 24 692 138 45 VALENTINE LIPP, APPELLEE, V. SOUTH OMAHA LAND 1. Real Estate: CONTRACT TO SELL: ASSIGNMENT: MORTGAGE. A land contract which is assigned by a written assignment, absolute in form, but designed as a mere security for a debt, is but a mortgage, and when the debt is paid the lien of the assignee will cease, except in case of an assignment by said assignee to another party, who receives the same in good faith and without notice. 2. : : : ASSIGNEE: SETTLEMENT. The pur 3. Lipp v. Land Syndicate. chaser of a lot, who received a contract therefor, assigned the same as security for a debt, and to secure future advances, the purchaser remaining in possession, but the assignment being absolute in form. The assignees effected insurance on a building on the lot in their own names, and the building being destroyed by fire collected the insurance, which satisfied their claims. The purchaser thereupon brought an action against the assignee to have the assignment declared a security and for an account. While this action was pending, the purchaser, being in possession, sold and conveyed the lot to one L., who entered into possession thereof. The purchaser and assignee thereupon settled the suit pending between them, and stipulated that the same should be dismissed. Held, That the purchaser having parted with all his interest in said lot, he could not thereafter fraudulently release any interest of L. therein. : TITLE. A party who purchases real estate in the possession of another takes the title incumbered with the equitable rights and equities of the party in possession. APPEAL from the district court of Douglas county. Heard below before WAKELEY, J. J. P. Breen and E. R. Duffie, for appellants, cited: 1 Greenleaf Evidence (13th Ed.), Secs. 27, 205. Hoyt v. Gelston, 13 Johns., 141. McCann v. McLennan, 3 Neb., 25. Comp. Stat., Sec. 7, Chap. 7. Inloe v. Harvey, 11 Md., 519. Snowman v. Harford, 62 Me., 434. Wade on Notice, Sec. 338. Bank v. Hopkins, 2 Dana, 395. Freeman Judgments, Sec. 262. Davis v. Davis, 26 Cal., 38. Holland v. Griffith, 13 Neb., 474. B. G. Burbank, John W. Lytle, and John L. Webster, for appellee, cited: Williamson v. Culpepper, 16 Ala., 211. Eiland v. Radford, 7 Ala., 726. Hall v. Savill, 3 G. Green., 37. Belton v. Avery, 2 Root, 279. Uhl v. May, 5 Neb., 160. Jones v. Harvester Co., 8 Id., 451. Whitehorn v. Cranz, 20 Id., 398. Lamont v. Cheshire, 65 N. Y., 42. Everts v. Agnes, 4 Wis., 354. Grimstone v. Carter, 3 Paige Ch., 436. Lipp v. Land Syndicate. MAXWELL, J. This action was brought by the plaintiff against the defendants to obtain a deed to certain real estate, which he claims to have purchased, paid for, and to be in possession of. He alleges in his petition: "That on the 12th day of April, 1884, the said South Omaha Land Syndicate, defendant, was then and still is a corporation duly organized and existing under the general incorporation laws of the state of Nebraska, and having one of its principal places of business in Douglas county; that on said date the said land syndicate, in consideration of the sum of $225, executed to said defendant, William E. Jones, a contract of sale of certain real estate, known as lot 11 in block 77, in South Omaha, in said county of Douglas, the said Jones paying therefor the sum of $56.25 cash, and a like amount on each 12th day of May, 1885, 1886, and 1887, was to be paid by said Jones, with interest and taxes for 1884. And after said payments had been made the said Jones or his assigns were to receive from said syndicate a deed conveying to him or them the aforesaid lot in fee simple, with the ordinary covenants of warranty; that said Jones took possession of said property and erected a building thereon of the value of $4,000, or thereabouts, and that said land syndicate has since that time been paid in full for said property. "2. That on the 22d day of May, 1884, said contract of sale was, with the consent of said land syndicate, assigned to J. B. French & Co., of Omaha, Nebraska, and defendants herein, absolute on its face, but conditioned nevertheless to secure a debt which said Jones owed said J. B. French & Co., amounting to about $2,700. "3. That prior to said assignment the late James B. French, who was a partner of the firm of J. B. French & Co., deceased, and letters of administration of his estate were Lipp v. Land Syndicate. taken out by the defendant, Egbert E. French, and the said Egbert E. French took possession of said premises and insured the building thereon for the sum of $3,800, and on the 29th day of November, 1885, the said building was destroyed by fire. "4. That the said Egbert E. French, while acting for the said J. B. French & Co., collected said insurance money in an amount larger than the indebtedness of said Jones to said J. B. French & Co., and said J. B. French & Co. held said assignment wholly without consideration, and the said Jones was then fully entitled to have said contract so assigned as aforesaid surrendered to him, or this plaintiff, as his assignee, as it will hereafter appear. "5. That on the 21st day of May, 1886, and while the said Jones was in full possession of said lot, and the owner thereof, for and in consideration of the sum of $1,000, he sold said property to this plaintiff, and at the same. time executed a contract in writing to said plaintiff, that he would make said plaintiff a deed to him of said lot as soon as the amount of certain liens against said property were ascertained, which were then in litigation, and as soon as he could obtain the said contract of original purchase from said J. B. French & Co., and said plaintiff took possession of said property, and has ever since then and does now have possession thereof, and has placed improvements thereon of the value of $3,000, and paid said Jones in full the said sum of $1,000, and said land syndicate has been paid in full. "6. The said plaintiff says that at the time of the making of the said contract of sale by Jones to this plaintiff the said original contract made by the land syndicate to Jones was not in the possession of said Jones, but was in the hands of E. E. French, and in litigation in a suit of W. E. Jones v. E. E. French et al., in this court, and said assignment could not be endorsed upon the same, but said syndicate was a party to said litigation, and knew of said Lipp v. Land Syndicate. assignment of Jones to French, and had actual notice of Jones' assignment to said plaintiff, and consented thereto, and knew of plaintiff's occupancy and possession of said premises. "7. The said defendant, E. E. French, though having no interest therein, and through the connivance of said Jones, sold or pretended to sell said original contract and said property to the defendant, Davis; that said Davis took said assignment with full knowledge of the plaintiff's contract of purchase of said Jones, notwithstanding he pretended to purchase and did surrender said original contract to said land syndicate, and received a deed therefor; that said Marc. A. Upton had actual notice of the sale of said property by Jones to this plaintiff, and, notwithstanding such notice, pretended to purchase said property of said Davis, who executed to him a deed to said premises, and said Marc. A. Upton now holds the bare, naked legal title to said lot, and the plaintiff alleges that all of said sales were fraudulent, and without consideration, and taken with actual notice of the plaintiff's ownership and possession of said property, and the plaintiff says that the said Jones now refuses to make him a deed to said property as he contracted to do, although he has been paid in full therefor, and has left the country for parts unknown." Answers were filed by certain defendants, who claim to have purchased the premises from or through J. B. French & Co., and to be entitled to a decree in their favor. On the trial of the cause the court found the issues in favor of the plaintiff, and rendered a decree in his favor. The testimony shows that Jones purchased the lot in question in April, 1884, for the sum of $225, and paid thereon the sum of $55.25, the remainder to be paid in three annual payments; that Jones received a contract which contained the terms and conditions of the purchase, and provided that upon full payment being made a deed |