Summary Judgment. Summary judgment is to be
granted when there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.
. Summary judgment is proper only when the pleadings,
depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled
to judgment as a matter of law.
Summary Judgment: Appeal and Error. In
reviewing a summary judgment, an appellate court views the
evidence in a light most favorable to the party against whom
the judgment is granted and gives such party the benefit of
all reasonable inferences deducible from the evidence.
Contracts. The interpretation of a contract
and whether the contract is ambiguous are questions of law
subject to independent review.
Mortgages. The priority of a mortgage may be
changed by agreement of the parties, rendering subordination
agreements enforceable in mortgages under Nebraska law.
Contracts: Mortgages: Intent. If an
instrument executed by parties is intended by them as
security for a debt, whatever may be its form or name, it is
in equity a mortgage.
Contracts: Mortgages: Words and Phrases. As
with the terms used in describing a mortgage, the Nebraska
Supreme Court has repeatedly termed a purchaser's
interest under an executory land contract as both a
"security" and a "lien" upon the land.
Contracts: Mortgages: Title: Liens. Because
a seller in a land contract retains the title as security for
the unpaid purchase money and has an equitable lien on the
land to the extent of the debt, a seller has, for all intents
and purposes, a purchase-money mortgage.
Neb. 16] 9. Contracts: Mortgages.
Subordination agreements are enforceable in land contracts.
___: ___ . Nebraska courts apply basic contract principles to
determine the enforceability, validity, and meaning of a
Contracts. In interpreting contracts, the
court as a matter of law must first determine whether the
contract is ambiguous.
Contracts: Words and Phrases. An instrument
is ambiguous if a word, phrase, or provision in the
instrument has, or is susceptible of, at least two reasonable
but conflicting interpretations or meanings.
Contracts: Intent. If a contract is
unambiguous, the intent of the parties must be determined
from the contents of the contract.
from the District Court for Douglas County: Peter C.
Bataillon, Judge. Affirmed.
C. Hansen and Edward L. Wintroub for appellant.
D. Nolan and Elizabeth Gasaway, of Nolan, Olson &
Stryker, PC, L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
of property entered into a land contract with a seller-trust
for the purchase of a residence. Both parties agreed to a
provision in the contract that stated: "Until all
amounts due hereunder are paid in full, this Land Contract
shall be subordinated to any rights held by Seller's
Lender." Subsequently, after the purchasers took
possession, the seller-trust signed a promissory note and a
deed of trust to a bank for a sum of money in order to pay a
previously existing mortgage on the purchased property. The
note and deed of trust were subsequently assigned to various
entities, eventually being assigned to its current holder, a
mortgage company who appears as the appellee in this case. At