105 Neb. 67 | Neb. | 1920
Creighton Gas, Electric Light & Power Company, a corporation, hereinafter designated the company, instituted this action in the district court for Knox county against I. J. Jamison and F. B. Jamison, his wife, to cancel and set aside two certain deeds executed and delivered by the company on July 20, 1915, in which I. J. Jamison is named as grantee, and to quiet the title
By its decree the trial court quieted the title to tract one in the company, and quieted the title to tract two in I. J. Jamison, and also rendered decree against the company and in favor of I. J. Jamison for $272, being rent for the premises described as tract two up to August 1, 1918. I. J. Jamison has filed an appeal from that portion of the decree quieting the title to tract one in the company. The company has filed a cross-appeal from that part of the decree affecting tract two, and the money judgment for rent.
There is a sharp conflict in the testimony as to whether the lands described as tract one and tract two were to be included in the trade, but on a careful review of the testimony we are of the opinion that tract one was to be included in the terms of the exchange and tract two excluded. Both Mr. and Mrs. Hough in their testimony say that Jamison told them that the office property (tract two) belonged to him personally and was not to be considered as going in the deal, that nothing was said by him excluding in any way from the operation of the trade tract one. Jamison’s testimony is to the effect that at all times he reserved from the trade tracts one and two. After the actual exchange had been made on August 6, the company leased from I. J. Jamison tract two. This transaction would be entirely inconsistent with the idea of ownership, and clearly indicates that Alice C. Hough understood that tract two was not included in the deal. There was an effort made on the part, of I. J. Jamison to show that the deeds to him made by the company were' based upon a contract between himself and the company made long prior to the trade in question, by which these deeds were to be given in payment for advances made by him to the company. The testimony on behalf of I. J. Jamison, in so far as it affected tract one, had so many earmarks of bad faith that the trial court was amply justified in finding that there wns no consideration to support the deed from the company to him as to tract one. The testimony of Mr. Hough, who examined the property as agent of the wife, establishes that Jamison represented that this tract belonged to the company and was a part of the system, and while
The contract between the parties of July 12, 1915, is inartistically drawn, but fairly interpreted shows that the Jamisons were to transfer all the shares of the capital stock of the company to Alice C. Hough, who would thereby become the sole stockholder in the company. The contract further described the physical property then owned by the corporation. This was described in very general terms, among the items of property listed being, “all pole lines, wires, meters, switches, conduits, fixtures, and land and buildings.” That it was the intention of the parties that all the lands and buildings then belonging to the company, except such as were specifically reserved, should be included in the transaction, is, we think, free from doubt. Just prior to the signing of the contract, the evidence shows that I. J. Jamison acting for himself and the other stockholders represented that there were no debts against the company, and all of its physical property, including the land, was free from incumbrance. In the light of the testimony, and the clear intention of the parties as to what property was to be included in the transfer, it would be a fraud, which no court would permit, to allow the parties to the contract, who were the officers of the company, to, in the name of the company, transfer its property to one of their number between the time of the signing of the contract and the actual transfer of the property. Good faith and fair dealing require that the status of the property should remain in the same condition, except such as was specifically reserved from the operation of the contract.
Upon an examination of the entire record, we are satisfied that the finding and decree of the district court is sustained by the evidence, and is clearly right. In the court below each party was decreed to, pay one-half of the costs. In this court the costs on the appeal will be borne by the appellants, including the costs of briefs.. The costs in this court on the cross-appeal will be borne by the cross-appellant.
hhe finding and decree of the district court is-
Affirmed.