67 Neb. 183 | Neb. | 1903
An examination of the record in this case, discloses no important dispute as to facts. The defendants’ brief makes no objection to any statements of fact in that of plaintiffs. The reply brief only objects to the defendants’ propositions of law. The legal questions arising seem to relate wholly to the intention and effect of certain admitted conveyances and the effect of a partition decree and of a bond given for the payment into court on the death of the widow of a certain sum, whose income was set apart as her dower. The action was begun, evidently, upon the theory that this sum of money, whose interest the widow’s grantee had enjoyed during her lifetime, was intended at her death to be distributed among the heirs of her husband, and that they were entitled to it all by right of descent. That theory the
The real question between the plaintiffs and defendants is whether or not, under the circumstances, and in view of the partition proceedings, and the giving of this bond, the heirs of Bluford Cannon, as such, are entitled to receive the amount of it. On September 26,1871, Bluford Cannon died in Johnson county, leaving eight surviving children and two grandchildren, Jane and Patience Cannon, the latter of whom died leaving two great-grandchildren of the intestate, John and Swift Berry; and Jane Cannon became the Jane Patrick of the petition. Four of these children were minors and at the time of his death had received nothing from his estate. The other five had received advancements to the extent of fl,000 each. The widow and the younger children continued to reside upon the homestead farm of 400 acres in Johnson county. After the father’s death the children seem to have regarded the farm as of value sufficient to place the four younger children on an equality with the older ones and leave intact the mother’s dower. The mother remarried and became Mrs. Platt. The family seems to have remained in occupation of the farm. In 1878 Benjamin became of age, and deeded his interest in the land to his mother, by what purported to be a warranty deed, and conveyed “all of my undivided one-fourth interest, the same being his entire interest” in the 400 acres of land. In 1881, Katie, having married, herself and husband deeded her interest to her two brothers, Charles Henry and Benjamin; this was also by a deed in the form of a general warranty, and purported to convey “all of an undivided one-fourth interest, the same being their entire interest in and to” the lands. In 1881 Cora and her husband conveyed to the defendant Zutavern, by deed of quitclaim, “all the undivided right, title and interest in and to” these lands. In 1882 the mother conveyed to the defendant Zutavern, by quitclaim deed, “all the undi
“Know all men by these presents, that George C. Zutav-ern, as principal, and Charles McCrosky, Chas. A. Holmes, Alf. Canfield, D. R. Bush, J. S. Harmon, G. M. Buffum, C. H. Halstead, Martin Gabriel, as sureties, are held and firmly bound unto the judge of the district court in and for Johnson county, state of Nebraska, in the penal sum of four thousand dollars for the payment of which we hereby bind ourselves, our heirs, administrators and assigns. The condition of the above obligation is such that, Avhereas the said George C. Zutavern has been appointed by the district court in and for Johnson county, state of Nebraska, the custodian of the dower interest of Sarah E. Platt, widoAv of Bluford Cannon, deceased. Noav therefore, if the said George O. Zutavern shall, upon death of the said Sarah E. Platt, pay into the district court the sum of two thousand, two hundred and fourteen 14-100 dollars, the same being the full amount of said dower interest of said Sarah E. Platt, then this obligation to be void, else to remain in full force a,nd virtue in law. Witness our hands this 15th day of March, A. D. 1883.”
One of the sureties, Charles McCrosky, died before the doweress. Her death took place June 10,1900. No money was paid into court, and this action was brought, making-all of the surviving heirs of Bluford Cannon parties plaintiff, and Zutavern and his sureties and the heirs of the deceased McCrosky defendants. There were two answers filed, — one of Zutavern and the other by the sureties, including the McCrosky heirs. The ansivers are substantially
Plaintiffs’ brief urges that the demurrers to each of the answers should have been sustained; that they set out no defense to the bond. Complaint as to the admission of evidence to sIioav Zutavern’s purchase of Smith Cannon’s interest from the mother is made. It is alleged that there was error in taking oral testimony as to the estate intended to be conveyed by the deeds to Zutavern. It is claimed that there is no proof of authority for the sale of Smith Cannon’s interest or that he received the proceeds of it; that the deed from Patience Curtis Avas subsequent to the partition proceedings, and does not purport to convey any interest in this money, and was erroneously received in evidence; that it purports to he only a quitclaim deed of certain land and can have no relation to a sum of money already derived from the sale of the land; that there is no evidence to uphold any finding of the sale of the share of Charles Henry to Zutavern. It is alleged that the trial court was wrong in the effect which it gave to these deeds and that the deeds only purport to convey a present interest in the land and could have had no reference to any
It is clear that when the partition sale was made the amount of money named in this bond was taken out of the price of the land. It is clear that it was taken out in a gross sum. It is clear that whoever was entitled at that time to the value of the reversion of this dower did not receive it. It is clear that Zutavern obtained the possession of this money by the giving of this bond and that it was signed by the sureties with the understanding that it was to be repaid. He and they are alike each estopped from denying the recitals in the bond. Zutavern at that time claimed no interest except the three-ninths and the dower right. This three-ninths interest is that represented by Mrs. Platt’s conveyance to him of the interest she had acquired from Benjamin, by Benjamin’s conveyance to him of the one-ninth interest he had derived through Charles II. Cannon from Mrs. Katie Jones, and the one-ninth conveyed to Mr. Zutavern by Cora. Jones and husband. At that time he only claimed to own the three shares thus obtained from Benjamin Cannon and from Mrs. Cora Jones and from Mrs. Katie Jones through her brothers Benjamin and Charles H. The partition decree must be esteemed conclusive upon Zutavern as to his holding any other right or claim in this land at that time. It was an adjudication, at his own instance, in which, all the plaintiffs here and Charles H. Cannon were defendants. The only right that he claims to have acquired since is by the quitclaim deed of 1884 from Mrs. Patience Curtis. If he has any right in the other five-ninths of the reversion, it must come by reason of the understanding that he testifies to have accompanied the deeds that he was getting the entire interest. Zutavern appears to have been at one time for some years a member of the Cannon family in the capacity of a boarder. His claim to the share of Smith J. Cannon rests wholly on his assertion, and that of the justice who took the acknowl
It remains still to consider Avliether or not the quitclaim deed of Mrs. Patience Curtis should be permitted to he shown by Zutavern as an assignment of her reversion in this fund, which Zutavern himself asserts was at the time wholly disconnected by means of the partition proceedings from the land. The conclusion reached is that the question of this subsequent assignment of the reversionary interest is one which may he determined by parol evidence. The quitclaim deed to the land, under the circumstances under which it was given, would not operate by its terms to effect such assignment. It seems, however, to have been properly admitted in evidence as one of the circumstances in connection with the negotiations between the parties, which should he considered in determining whether or not Mrs. Patience Curtis, as a matter of fact, did, after the partition, assign her interest in the reversion to this fund.
Defendant raises the question of pleading in his answer that there was no joint right of recovery in this case on
With regard to the claim that the interest in the reversion of tlie dower did not pass to Zutavern under his deeds of quitclaim and of bargain and sale, by which he held the three-ninths interest claimed by him in the partition proceedings, and that, therefore, he is not now entitled to any portion of this fund, it seems impossible that it should be sustained. Section 50, chapter 73, Compiled Statutes,
It having been concluded that Zutavern is estopped by the decree and the bond given under it from claiming more than three-ninths of this land, it follows that the other parties to that action, who were makers of these deeds, are also estopped. It must be held, as to them, conclusive that at the time of the partition proceedings Zutavern held absolutely the dower interest and the three-ninths of the fee title. He therefore must be allowed, to have that three-ninths of the reversion of this fund which is derived from the sale of his three-ninths of the land. It is believed, therefore, that the heirs of Bluford Cannon are entitled to recover six-ninths of this fund by their joint action, unless Patience Curtis is found to have assigned to Zutavern her original one-ninth of it; that the one-ninth of it belonging to Charles Henry Cannon in his lifetime, if he is dead without leaving a will, should go to the plaintiffs jointly; and that Benjamin Cannon, Katie Jones and Cora Jones should receive their portion of this one-ninth. As to Patience Curtis, the question of Avhether or not she has assigned her reversionary interest to Zutavern since the partition proceedings should be determined.
It is recommended that the judgment of the district court be reversed and the cause remanded for further proceedings according to law.
For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings according to law.
Reversed and remanded.
Cobbey’s Annotated Statutes, sec. 10253.