1. Scope
2. Allegations
3. Miscellaneous
1. Scope
Requirement that petition state whether any proceedings at law have been brought is for protection of the debtor, and does not apply to purchaser of land who did not assume mortgage indebtedness. Federal Farm Mtg. Corp. v. Adams, 142 Neb. 202, 5 N.W.2d 384 (1942).
Failure to amend this section shows legislative intent to permit suit at law for deficiency after mortgage foreclosure proceeding is completed. Federal Farm Mtg. Corp. v. Thiele, 137 Neb. 626, 290 N.W. 471 (1940).
Section applies only to formal mortgages and not to mortgages or liens arising out of the equities between the parties. Luikart v. Bank of Benkelman, 132 Neb. 501, 272 N.W. 324 (1937); Bankers Life Ins. Co. v. Ohrt, 131 Neb. 858, 270 N.W. 497 (1936).
Statute does not apply to action to foreclose a contract for sale of real estate. Connecticut General Life Ins. Co. v. Leahy, 125 Neb. 644, 251 N.W. 278 (1933).
Defense is available to attaching creditor contesting priority. Fryer v. Fryer, 74 Neb. 845, 105 N.W. 712 (1905).
Intent of this section is to prevent prosecution of proceedings at law to recover indebtedness concurrently with proceedings to foreclose mortgage. Carman v. Harris, 61 Neb. 635, 85 N.W. 848 (1901).
Section applies only to formal mortgages, and not to liens arising from equities between parties. Dimick v. Grand Island Banking Co., 37 Neb. 394, 55 N.W. 1066 (1893).
Section is for benefit of mortgagor, and between lienors is not required. Chaffee v. Schestedt, 4 Neb. Unof. 740, 96 N.W. 161 (1903).
2. Allegations
Allegation that no proceedings at law have been had must be proved to entitle plaintiff to a decree of foreclosure. United Benefit Life Ins. Co. v. Holman, 177 Neb. 682, 130 N.W.2d 593 (1964).
Absence of required allegation is not ground for vacation of judgment after expiration of term. Gasper v. Mazur, 157 Neb. 857, 62 N.W.2d 117 (1954).
If plaintiff's allegation that no proceedings at law have been instituted for the recovery of the debt is denied, plaintiff is not entitled to a decree of foreclosure unless his allegation is supported by competent evidence. Jones v. Vennerberg, 133 Neb. 143, 274 N.W. 494 (1937).
Failure to insert in petition to foreclose mortgage allegations that there has been no action at law to collect the debt and that debt has not been paid, is not ground for reversal on appeal, where such allegations were read into the record of the trial with permission of the court, and were put in issue by an answer and tried to the court. Hitchens v. Alderson, 129 Neb. 573, 262 N.W. 501 (1935).
Where plaintiff in alleging in his petition that there had been no action at law to recover the debt failed to include the statutory words "or any part thereof," Supreme Court would permit amendment in furtherance of justice and to conform to proof. Pitman v. Henkens, 125 Neb. 621, 251 N.W. 282 (1933).
Plaintiff must allege, and if denied, prove no proceedings at law started. McMonies v. Lindgren, 115 Neb. 207, 212 N.W. 45 (1927); Young v. Thompson, 114 Neb. 804, 210 N.W. 407 (1926); Reed v. Good, 114 Neb. 777, 209 N.W. 619 (1926).
Where plaintiff is assignee he must make prima facie proof that no action has been commenced by any holder. Lyons v. Allen, 88 Neb. 41, 128 N.W. 652 (1910).
Without such allegation in pleadings, decree will be reversed. Michigan Trust Co. v. City of Red Cloud, 69 Neb. 585, 96 N.W. 140 (1903), rehearing denied 69 Neb. 592, 98 N.W. 413 (1904).
Petition must state whether action at law has been commenced, and whether debt or any part has been paid. Bing v. Morse, 51 Neb. 842, 71 N.W. 712 (1897).
3. Miscellaneous
Conditional allowance of mortgagee's claim against mortgagor's estate did not preclude foreclosure. Quesner v. Novotny, 116 Neb. 84, 215 N.W. 796 (1927).
Ordinary rules of proving a negative apply. McLanahan v. Chamberlain, 85 Neb. 850, 124 N.W. 684 (1910).
The negative allegation plaintiff must prove if denied. Beebe v. Bahr, 84 Neb. 191, 120 N.W. 1021 (1909).
Where answer is general denial, plaintiff must prove whether or not any proceedings at law have been had for the recovery of the debt. Jones v. Burtis, 57 Neb. 604, 78 N.W. 261 (1899).
Objection that no proceedings at law have been had must be made prior to rendition of decree. Henry & Coatsworth Co. v. McCurdy, 36 Neb. 863, 55 N.W. 262 (1893).