76 Neb. 439 | Neb. | 1906
In her petition the plaintiff alleges that she, with her husband, Jenores T. Ott, executed their warranty deed to certain real estate to one John C. Saylor for an agreed price of $820, which deed was placed in the hands of one Whipkey to be delivered to Saylor upon his payment to Whipkey of $320 for plaintiff; that Saylor paid the money and got the deed; that about March 5 the defendant fraudulently induced Whipkey to pay the money to him without authority from plaintiff and fraudulently converted it to his own use and benefit, and though often demanded refused repayment, and prays judgment for $320, and interest at 7 per cent, from March 5, 1901. Demurrer to the petition was overruled, whereupon the defendant answered, denying each of the allegations of the petition, and as an affirmative defense alleged in substance : That, while the legal title to the land at the date of plaintiff’s conveyance was in her, she held it in trust for the use of the defendant who had paid the purchase price, and that the conveyance thereof by the plaintiff’s said deed to Saylor was in pursuance of an agreement between himself and the plaintiff’s husband to the effect that the latter should procure a purchaser for the land and
It is first claimed that the court erred in overruling the demurrer to the petition. The argument in this behalf is based on the omission of the plaintiff to allege that she was the owner of the land conveyed and for which the consideration which came into the defendant’s hands was paid. Every material allegation of her petition stands admitted for the purposes of the demurrer. Those allegations show that the money was left with a third party for the use of the plaintiff. It was her money, and whether, she had title to the land or gave .value received for the money does not concern the defendant whose relation to the transaction, so far as appears from the petition, was that of a mere intermeddler, who wrongfully obtained possession of a sum of money belonging to the plaintiff.
There are assignments based on the rulings of the court permitting the plaintiff to amend her reply, and on the motions made by the defendant assailing the reply, as
It is next contended that the court erred in admitting a copy of the conveyance mentioned in the petition in evidence over defendant’s objection that it was not the best evidence, and that a sufficient foundation had not been laid for the admission of secondary evidence. It is not claimed that the defendant was prejudiced by this evidence in any way, save that by reason of the recital therein as to the amount of the consideration it tended to show the consideration actually paid by Saylor for the conveyance in question. This might have been prejudicial had there been any dispute as to the consideration named in the deed. But there was none. One of defendant’s own witnesses testified to the consideration named, in the deed, placing it at precisely the same sum as that shown by the copy received in evidence. It is quite clear therefore that whatever technical error there may have been in the admission of the copy in evidence it was error without prejudice.
It is also claimed that the court erred in giving the following instruction: “The jury is instructed that in Nebraska a married woman has the same right to own, control and dispose of both real and personal property as if she were single, and she is entitled to the same protection with relation thereto as are men or unmarried women.” The instruction was proper in view of the evidence. Throughout the case the defense sought to bind the plaintiff by certain acts of her husband, while on the other hand she denied the authority of her husband to act for her with respect to the matter in suit. It was very proper to call the attention of the jury to the fact that, notwithstanding the
Another instruction tendered by the defendant and refused by the court is as follows: “You are further instructed that, if you find from the evidence that defendant furnished the money to pay for the said tract of land and that the said Malinda Ott or no one on her behalf paid said sum to defendant, the defendant then had an equitable interest in said land and in the proceeds of the said land sold to Mr, Saylor, and his coming into possession of said proceeds would not be fraudulent or unlawful, unless you find from the evidence that defendant did actually exercise fraud, deception or misrepresentation in order to obtain possession of said proceeds and did thereby obtain possession thereof.” This instruction was properly refused. The evidence shows that the plaintiff’s husband borrowed the money to pay for the ten acres, taking the title in his wife’s name. The instruction is to the effect that, where one loans money to another for the purchase of real estate, he thereby acquires an equitable interest in the real estate in which the borrower invests the money. No authorities are cited in support of this proposition, and it will be conceded, we think, that none can be found. The instruction vas properly refused.
The foregoing disposes of this case, but it may not be out .of place to add that the record is unnecessarily voluminous. The summons, including the officer’s return thereon, a motion for security for costs, with a notice and affidavits pertaining thereto, and many other matters having no bearing on the questions presented to this court are included in the transcript. They serve no useful purpose there, and only add to the expense of the litigants and the labor of the reviewing court. The jurisdictional feature of a transcript filed in this court is the “judgment, decree or final order sought to be reversed, vacated or modified,”
It is recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.