299 N.W. 325 | Neb. | 1941
Presented here are two actions identical in all particulars except as to names of parties and description of real estate/ They were consolidated for trial in the district court and have been presented here on one bill of exceptions and one set of briefs. They will be disposed of in one opinion. The actions were originally instituted in the district court for Cheyenne county, Nebraska, by plaintiffs and appellees, against Blanche Price, defendant and appellant, and others not parties to this appeal, the objects and purposes of which were to obtain specific performance of an alleged oral contract between plaintiffs and one August Burk, and to quiet title in Gustave A. Gilgren to the northwest quarter (NW !4) of section twenty-eight (28), township seventeen (17) north, range forty-nine (49), west of the sixth P. M. in Cheyenne county, Nebraska; and to quiet title in David Christian Gilgren to the southwest quarter (SW]4) of this section of land.
The substance of the claims of plaintiffs, as set forth in their petitions, is that prior to her death on April 21, 1934, Anna Kristina Gilgren, mother of plaintiffs, was the owner of the northwest quarter (NW %) and the southwest quarter (SW ) of section twenty-eight (28), township seventeen (17) north, range forty-nine (49), Cheyenne county, Nebraska, and that at the time of her death Vera Josephine Andersen held a mortgage on the northwest quarter, and the Lincoln National Life Insurance Company held a mortgage on the southwest quarter. After the death of Anna Kristina Gilgren the mortgagees foreclosed the mortgages, and decrees of foreclosure were duly entered in March and September, 1935, respectively, and nine-month stays were taken in each case. Prior to the sales August Burk purchased and secured assignments of the judgments of the two mortgagees, whereupon the stays were withdrawn and sales made to August Burk, which sales were duly confirmed and deeds were issued.
August Burk was a brother of Anna Kristina Gilgren, an uncle of Gustave A. Gilgren and David Christian Gilgren,
On October 27, 1939, August Burk died in Cass county, Nebraska, leaving a will in which he gave to Blanche Price, a niece, all of his estate after the payment of debts, funeral expenses and costs of administration. This will was duly probated in the county court of Cass county, Nebraska.
The plaintiffs contend that this will is in violation of an oral agreement which August Burk had with them, whereby Burk agreed to give Gustave A. Gilgren the northwest quarter, above described, and to give the southwest quarter to David Christian Gilgren.
They alleged that on May 16, 1936, and at many times prior thereto, August Burk orally promised that in consideration of the plaintiffs’ withdrawal of their nine-month stays, and the transfer of the use and benefit of the real estate involved to August Burk, such use and benefit being rents and income during the life of Burk, and a further cash consideration of $1,000 to be received by plaintiffs out of the estate of Lottie Akeson through the estate of Anna Kristina Gilgren and paid over to August Burk to apply on the existing indebtedness upon the land in question here, at his death Gustave A. Gilgren would become the sole and absolute owner of the northwest quarter, and David Christian Gilgren would become the absolute owner of the southwest quarter. They say that the stays were withdrawn and that Burk received the $1,000 from the estate of Anna Kristina Gilgren.
It is this agreement that plaintiffs seek to have enforced in these actions, and they further seek to have titles quieted in them to the lands described as against the devise to Blanche Price.
Ellen Gilgren, wife of Gustave A. Gilgren, in relation to a conversation with August Burk testified to the following: “Q. What was your conversation with him? A. I told him I didn’t want to sign that paper to give him control of the estate. Q. What did he say ? A. He said if I would, he said at his death we wpuld get it, he would either give us a quitclaim deed or turn it over to us in a will at his death. Q. Who did he say he meant, if he did at all, by ‘we’ ? A. He meant my husband and I. Q. Did he tell you anything, or did you talk about the other piece of land that was willed to Dave? A. Yes, sir; he said that went to him and his wife.”
David Christian Gilgren, having been limited by the court to conversations relating to the Gustave A. Gilgren case, testified as follows: “Q. Now, did you ever have any conversation with your uncle August Burk respecting the real estate that was owned by your mother at the time of her death? A. Yes; I did. Q. Did you have more than one conversation with him? A. Yes. Q. Over how long a period did those conversations take place? A. I would judge about three months. Q. And can you tell now how many you had during that three months period ? A. Oh, I should say ten or twelve. * * * Q. Now, just tell the court what those conversations were between you and your uncle August Burk affecting the land that was in your mother’s estate, that is, for instance the northwest quarter? * * * Q. I will ask you
On behalf of the plaintiffs, A. J. Kinnersley gave the following testimony with reference to conversations with August Burk: “Q. I will ask you if you had any conversation or conversations with Mr. August Burk, during the, well, in the spring of 1936 ? A. I had a number of conversations with him during the time that there was these foreclosures on the Gilgren property, I don’t remember the dates. Q. Was that prior to the time when he finally purchased the property ? A. That was prior to, and I also talked with him about it afterwards. * * * Q. What, if anything, did you say to him at that time about that? * * * A. I told him he would have to purchase a judgment and get an assignment of it in order to clean it up. * * * Q. Did he tell you the reason he wanted that at that time? A. He did. Q. What was that? A. The reason was he wanted to save it
This quoted testimony is substantially all of the evidence in support of the contention that the plaintiffs entered into an oral agreement with August Burk, by the terms of which. Burk agreed to give by deed or will the two quarter-sections of land to the plaintiffs, in consideration whereof they agreed to release two foreclosure stays, and to pay or cause to be paid to Burk a legacy of $1,000 which came to their mother from the estate of her sister and to them through the estate of their mother.
The evidence further showed the following: Burk took assignments of the two foreclosure judgments and paid for them a little more than $2,400, all his own money; that the
Further, it is shown conclusively by the evidence that Burk did not get the $1,000 which was a part of the consideration for the claimed agreement. All of the $1,000, except $224.81, was used in payment of the debts of the estate of Anna Kristina Gilgren, which amount was released to Burk. As against this amount the record shows by stipulation that Burk paid $423.35 in taxes upon these two quarter-sections of land, which became due before entry into the claimed oral agreement.
On this evidence the district court found that plaintiffs and August Burk had entered into the oral agreement pleaded in the petitions, and that there had been full performance on the part of the plaintiffs, and entered its decrees and judgments accordingly.
The substance of the assignments of error is that the court erroneously so found and decreed.
The rule is, in case an oral agreement to make a will is proved, that specific performance of the oral contract will be enforced, only, where one party has wholly and the other
Assuming, but not deciding, that the oral agreement alleged by plaintiffs was proved, the evidence shows without doubt or contradiction that the part of the agreement which required the payment of $1,000 to August Burk was never performed. That this consideration was important can hardly be questioned, since the only others were the release of the foreclosure stays, and the use and benefit of the lands which Burk never got to any appreciable extent. One of the stays had but five days to run and the other about six months. The plaintiffs were never ousted from possession, and only one of them ever paid rent and he only a very small amount.
We conclude that performance of the alleged oral contract by the plaintiffs was not proved; in fact, the evidence of the plaintiffs specifically negatives performance by them. In the absence of such proof the plaintiffs were not entitled to any of the relief prayed.
In the light of this view, we find it unnecessary to discuss the question of whether or not an oral contract was, in point of fact 'or law, proved, or the further question of whether or not it was error to allow the attorney, A. J. Kinnersley, to testify to conversations had with August Burk, or any of the other questions raised by the appeal.
We find, for the reasons herein set forth, that the decrees and judgments in each of these cases should be, and they are,
Reversed.