11 Neb. 404 | Neb. | 1881
This was an action for the recovery of two lots in the city of Lincoln. In his answer the plaintiff in error conceded that the legal title was in the defendants in error, but pleaded in bar of their claim, first, the statute of limitations, and, second, that he himself was well entitled to the lots by virtue of his occupancy and improvement thereof under the act of the legislature of February 15th, 1869: “ For the relief of persons who have improvements upon state lots in the town of Lincoln.” Laws 1869,247. And in this behalf he avers that the state officers having the disposal of these lots, in disregard of his rights, fraudulently' sold them to the defendants in error, who were purchasers with notice of his equities. This sale was .made and the title passed from the state by deed to Pier Benson, one of the defendants in error, April 4th, 1870.
In ejectment this title from the state by deed in fee should of course prevail, unless overborne by the superior equity of the plaintiff in error. It is now settled law, and conceded to be so by the defendant’s counsel, that a defendant in ejectment may interpose an equitable defense to defeat a recovery by the holder of the legal title. But to avail him, his equity must of course be superior to that of the holder of the fee. Has Blazier shown such equity in himself, or even made such a case by his proofs as would support a finding by a jury that he had? Most clearly not, as we think.
In addition to the fact of Blazier’s settlement upon and improvement of these lots, of which there is no controversy, his answer sets forth that he tendered to the proper state officers the amount'at which they had been valued under the act above referred to. ■ But it
In this condition of things respecting the lots, to assert his equity, if he had it, against the defendants in error, Blazier should have made and proved a tender to them of at least the appraised value of the lots, which the answer conceded the defendants in error had paid, together with interest on that amount from the time of payment. But he did not do this. He has made no offer to reimburse them for any portion of their expenditure of fifteen hundred dollars in paying for the lots of which he now seeks to deprive them by what he claims is a superior equity. In other words, he demands the judicial establishment of his ownership of the property as against those whom he admits have bought and paid for it, without the payment of a single dollar by himself. To accord him this, it seems to us, would require a total disregard of the common maxim, that one who seeks equity must be willing and ready to do equity. ' In this particular we find both the answer and the evidence adduced by the plaintiff in error to be decidedly wanting.
But there is still another equally potent objection to this claim of equity by the plaintiff in error. It is shown beyond all question, that prior to the time of the conveyance by the state to Benson, the plaintiff in error sold his entire interest in the lots to one Kahn, who in turn transferred it to 'the defendants, whereby they were enabled, on making the payment of fifteen
The evidence shows that the assignment of Blazier’s interest in the lots to Kahn was in writing. Counsel urged against it, however, that it was not witnessed and acknowledged, and therefore passed no title. It is true that such an instrument would not convey the fee, but this Blazier did not have to convey, it was then in the state. Being in writing and signed by him, it fully answered the requirements of the statute of frauds, and was effective to pass all the interest he then had. As between the parties to it, and their privies, a contract for the sale of land, or of any interest therein, need not be either witnessed or acknowledged to be effective.
Being of opinion that no defense was shown either by the answer or the evidence as against the legal title held by the defendants in error, the judgment must be aflirmed.
Judgment affirmed.