113 Neb. 839 | Neb. | 1925
In the district court for Douglas county defendant-was convicted of a violation of section 9802, -.Gomp; St. 1922, and from this conviction he prosecutes error to This' court;-.-
.: In April, ,1922, -defendant and; one John- M.' Kemp, entered into .an. agreement-in-writing wherein it was ¡provided That' Kemp should convey certain reah properties in OmahaV-subject to incumbrahces,’ to defendant, and-defendant should convey certain, lands, subject To incumbrances, in-ThomaS county, to Kemp. -'The title to'the property which Kemp agreed to convey -was held in The-¡name of'his- wife,-' Mary* T. Kemp, and the property which, defendant agreed to ¿onvey was said To stand in -the name -of one Don E. DeBoW* a friend or silent partner of «defendant. Following the' exe-. cution1 of this agreement, Kemp-stood willing To convey to! defendant all' the ■ properties covered'by the written agreement, but one parcel thereof was so heavily incumbered that-defendant did not desire to receive the conveyance and whatever interest either party had ip the property was subsequently extinguished by foreclosure proceedings. So far as that property is concerned it need not be further considered. Kemp and his wife executed and delivered a deed, according to the written agreement, to the other property; which is denominatéd “The House of Hope.” This property was also heavily incumbered. It is claimed by defendant that the incumbrances, equalled the value of the property. A consideration of all the evidence, direct and circumstantial, convinces us that this claim is approximately correct. . . i.
On receipt of the deed from Kemp, defendant- delivered to him a quitclaim deed, running from DeBow, and covering the land in Thomas county. Each deed exchanged was delivered without the name of the grantee being inserted in the instrument. This appears to have beep the custom followed by both Kemp and Eselin, who may be denominated traders. After having accepted the quitclaim deed to the Thqmas county land, Kemp claims to have returned to the office of defendant and complained because the deed de
Prior to the time when Kemp and Eselin began their negotiations, Eselin had been involved in litigation and a judgment had been entered against him in the district court for Douglas county. Eselin prosecuted an appeal from that judgment to the supreme court of Nebraska, and in connection with that appeal, executed a supersedeas bond. In order to induce the Massachusetts Bonding & Insurance Company to become a surety upon this supersedeas bond, defendant had, in July, 1921, caused DeBow to execute a deed, absolute in form, which purported to convey title to the land in Thomas county to the Massachusetts Bonding & Insurance Company. This deed had been placed on record in Thomas county before the contract for exchange of properties was made between Kemp and defendant. The deed of conveyance to the Massachusetts Bonding & Insurance Company constitutes the basis for this prosecution. Kemp testified that he did not know of the deed of conveyance to the Massachusetts Bonding & Insurance Company at the time he accepted the quitclaim deed, while defendant testified that he made known to Kemp the existence of the deed, although he was himself in ignorance of the fact that the deed had been recorded. The verdict may be said to have settled this controverted question of fact according to the contention of Kemp. However,.this being.a criminal prosecution; before the judgment can be upheld,- a felonious in
The judgment of the district court is, therefore, reversed and set aside, and the information dismissed.
Reversed and dismissed.