18 Neb. 664 | Neb. | 1886
This is an action in equity brought in the district court of Hamilton county, by Joshua Cox, plaintiff, against
The cause was tried to the court, which found all of the issues for the plaintiff, and adjudged, decreed, and ordered the said deed reformed and corrected as prayed by the plaintiff in 'his petition, etc.
The cause is brought to this court by the defendants by appeal. The case presents two questions:
1. Was there a mistake in the description of the land sought and intended to be conveyed by Francis M. Ells-worth and wife to Mitchel Clement under date June 9, ■■1875?
2. Was Mitchel Clement deceased prior to November 21,1881?
The deed as recorded describes the,land conveyed as <l the south half of the north-west quarter of section 34, in township 10, range 5 W. It was amply proved on the trial that this land was entered under the homestead law prior to any of the transactions between Ellsworth and Clement by one Thomas C. Klumb, who continued to own and occupy it until long after the date of said transactions. The defendant F. M. Ellsworth presented his own deposition, taken in Washington Territory, as evidence on the part of the
Upon this and other testimony I do not think that the court could have found otherwise than that “there was an-error and mistake inadvertently made in the description of the premises intended to be made,” etc. Some stress is laid in the deposition of defendant on the assertion made-by him that if there was a mistake in the‘description of the land in the deed it was not his mistake, but the mistake of Mills, the agent of the grantee. I do not think it would make any difference whose mistake it originally was. By-executing and acknowledging the deed he adopted its. terms, and if there was a mistake in it, though made by-the draftsman, whoever he might be, so that the deed did
On the second point, it appears from the record that about five years previous to the date of the conveyance by Sarah J. and Minnie H. Clement to the plaintiff, Mitchel “Clement was a man of about sixty-three years of age, married, and had been married about 17 years, his family consisting of his wife and an only daughter, a bright and intelligent girl of about fifteen; he being of sober and industrious habits, greatly attached to his family and home, in easy .pecuniary circumstances. He resided with his family in his own house in the village of Forrest, Livingston county, Illinois. His business had been for many years that of purchaser of corn. At this time the active season for that business was just about to commence. He had just finished repairing his cribs and putting in new scales for the purpose of weighing corn. Under these circumstances, in the early part of the month of December, •after eating his breakfast in the morning, he as usual left his house and went into the village without expressing his Intention of going away anywhere, and without taking anything with him but his every-day clothes on his back. He never returned, nor did his family or friends or any of the citizens of Forrest ever see or hear of him so far as is known, except to learn from the bankers, where it seems he had some money on deposit, at the neighboring city or town of Fairbury, about five miles distant, who stated to the wife of the missing man that he came into the banking house on that day and drew out his money which he had •on deposit there, amounting to about $1,800. All of his relatives’ and connections known to his wife and daughter were corresponded with for news of the missing man, and •extensive search made by the people of Forrest for his body in case any accident or casualty had befallen him, but all without effect.
Now then, was this evidence sufficient, after the lapse of
The case of Tisdale v. Connecticut Mut. Life Ins. Co., 26 Ia. R., 170, is a strong case and quite in point to the case at bar. This was an action by Mrs. Tisdale against the life insurance company upon a policy of insurance on the life of Edgar Tisdale, her husband. Of course, the leading fact to be proved by her, was the death of Edgar Tisdale. The case does not show the date of the com
The above case was cited with approval in Hancock v. Amer. Life Insur. Co., 62 Mo. R., 26; also, by the supreme court of Kansas in Ryan v. Tudor, 31 Kan., 366, all cases cited by counsel for appellee.
The judgment of the district court is therefore affirmed.
Judgment affirmed.