78 Neb. 349 | Neb. | 1907
Lead Opinion
Brief of counsel for appellant contains so plain and fair a statement of the facts in the case that we adopt it here: “Marie Grandjean died intestate in Dawson county on the 3d day of January, 1902. She left no children, but did leave surviving her Axel Grandjean, her husband, who is the appellant, and three brothers, who are the appellees. At the time of her death she ivas the owner of an undivided one-half interest in four certificates of purchase of certain school lands of the state of Nebraska, the principal to become due on March 13, 1913, with interest
The facts above set forth require us to determine (1) whether the interest in the lands held by Mrs. Grand jean under her school land sale contracts was personal property or real estate which descends to her heirs; and (2) if her interest was real estate which her heirs would inherit, is her husband, the appellant, entitled to an estate by the curtesy therein? In Hendrix v. Barker, 49 Neb. 369, the following was held: “In an executory contract for the sale of real estate equity treats the vendor as the trustee of the purchaser and the purchaser as the trustee of the purchase money for the vendor. This rule rests upon the doctrine that equity considers that done which ought to be done.” This rule was followed in Jewett v. Black, 60 Neb. 173, and it is the generally prevailing rule adopted
It is insisted by appellant that, when the contract of sale is executory, equity Avill not apply the doctrine as a matter of course; that equity Avill not regard that as having been done which may not be done for some cause arising out of the contract, the relation of the parties, or the law; that, if sufficient cause appear upon examination of the contract, equity Avill not convert what is primarily personal property into real estate. Without doubt this is the general rule, and so, too, the further rule obtains that, in order to work a conversion of a contract for the sale of real estate into realty, “the contract must be valid and binding, free from inequitable imperfections, and such as a court of equity Avill specifically enforce.” 3 Pomeroy, Equity Jurisprudence (3d ed.), sec. 1161; Keep v. Miller, 42 N. J. Eq. 100. In the case last cited it is said: “A valid and binding contract of sale, such as a court of equity will specifically enforce against an unwilling purchaser, operates as a conversion. The cases in Avhich the court has refused to decree that a contract for sale works equitable conversion, are those in which the contract was such as equity would not enforce,” The cases above cited
The appellant insists that the contracts held by Mrs. Grand] ean are unenforceable against her, and constitute only an option on her part to purchase at the price named therein upon payments of principal and interest to be made at the several dates specified. The contracts recite: “That the slate of Nebraska has sold unto E. M. F. Lefiang the lands therein described for the sum of $400, one-tenth of the purchase price cash in hand and the remainder in 20 years time, with interest at the rate of G per cent, per annum, interest payable annually in advance on the first day of January of each year according to the tenor and effect of a certain promissory note given by the said E. M. F. Leflang for the unpaid purchase money for said lands.” It is true that the purchaser did not sign this contract, but the contract recites that he has signed a note by which he has bound himself to pay the purchase price, both principal and interest, and, while it may be true that there is no special provision of our statute relating to the sale of school lands directing the execution of a note by the purchaser, or directing the officer having charge of such sales to institute suit upon such note, we know of no principle of law which would prevent the state from enforcing payments thereon. Nor do we think it can be denied that, upon full performance on the part of the vendee, the state would be compelled to execute a deed. In this state we have held that an agreement signed by the vendor alone, if accepted by the vendee, is valid and may be specifically enforced. Robinson v. Cheney, 17 Neb. 673. We hold therefore, that a vendee in contracts of the character of the one in question is the equitable owner of the lands described in such contracts, and that on his death they descend to his heirs.
Having determined that ihe interest held by the deceased
We recommend an affirmance of the decree appealed from.
By the Court: For the reasons stated in the foregoing-opinion, the decree appealed from is
Affirmed.
Rehearing
The following opinion on rehearing was filed December 18, 1907. Former judgment of affirmance adhered 'to:
The opinion upon the former hearing, which states the facts involved in this controversy, may be found ante, p.
1. This court is fully committed upon the first proposition. In Dorsey v. Hall, 7 Neb. 460, it was said: “Where a contract is made for the sale of real estate, equity considers the vendor as a trustee of the purchaser for the estate sold, and the purchaser as a trustee of the purchase money for the vendor.” This holding was approved in Burrows r. Borland, 40 Neb. 464, and in many subsequent decisions. There may be some reason for argument as to the application of this principle to contracts of purchase of school lands from the state. The law provides that the title to school lands vests in the state upon the failure of the purchaser to make the payments provided for in his contract. No proceedings for that purpose are necessary on the part of the state, but by the mere failure to make the payments the rights of the purchaser in the land are forfeited. This court has refused to make such a distinction. In Cutler v. Meeker, 71 Neb. 732, the contract was one for the sale of school lands by the state, and it was held: “The interests of a vendee in possession of real estate under a contract of sale, part of the purchase price of the land having been paid, at his death, descends to his heirs, and does not pass to his administrator. It is alienable, descendible and devisable in like manner as if it were real estate held by a legal title.” The law therefore must be considered settled in this state upon this point.
2. The reasoning supporting the second proposition is not so satisfactory. In Crawl v. Harrington, 33 Neb. 107, it is said: “The legal title still remained in the state. It was not, therefore, an estate of inheritance, and the wife
In Hall v. Crabb, 56 Neb. 392, it is said: “The equitable interest which Lorina McCully had in the land in controversy at the time of her death was less than a freehold estate,' and consequently, under the authority above cited was not an estate of inheritance. Her husband was, therefore, not entitled to a tenancy by curtesy in this land, and accordingly the judgment of the district court is affirmed.” Thus, it appears that in this state the surviving husband was denied the right of curtesy in the land held by his deceased wife under contract solely because the estate of the wife in the land was not an estate of inheritance. ■ This court has many times held, as already shown, that one who holds a contract of purchase of real estate, has made payments thereon, and is in full possession of the real estate, has an interest in land that upon his or her death descends to his or her heirs; that is, the heirs inherit the estate, and yet for the purpose of denying the right of dower or curtesy we are compelled to hold that an estate which the heirs take by inheritance is not an estate of inheritance. This apparent absurdity seems to have been derived from some supposed technical definitions of the common law, yet it is difficult to see how they can be applicable under the provisions of our statutes. So far as we can see the position is wholly indefensible upon reason.
There are, nevertheless, very strong reasons for adhering to the rule established in Crawl v. Harrington and Hall v. Crabb, supra, upon the ground that it has become a rule of property. The statute under which these decisions are made has been repealed and a new statute substituted therefor. Thousands of acres of land have been conveyed in this state by the two great land grant railroads, one of whose lines extends through the state the
For these reasons, we are compelled to adhere to our former decision.
Affirmed.
Dissenting Opinion
dissenting.
I find myself unable to concur in the conclusion reached by my associates, and the discussion contained in the prevailing opinion furnishes me a sound reason for my dissent. It is there clearly shown that the conclusion is wrong and amounts to a nullification of a positive statute which gives the appellant an estate of curtesy in the land in controversy. While I recognize the binding-force of the doctrine of stare decisis and of the rule of property, I do not think they require us to adhere to a former decision where it is clearly wrong- and is opposed to a plain provision of our own statutes. When there are two reasonable solutions of a question, both having support in principle and precedent, and the court has adopted one of them and has adhered to that view, until it has become a rule of property, then that rule applies, but it should not be invoked to sustain a rule which was absurd and clearly wrong in its inception. Again, I am not able to convince myself that the serious consequences anticipated by my associates would follow a correct decision of this case. I think I may say that it is a matter of common knowledge that the land grant railroads, mentioned in the prevailing opinion, adopted and, so far as we know, have carried out a rule which required both husband and wife to join in the assignment of its contracts of sale; and, so far as state school land contracts are concerned, the records of this court show so few cases where any controversy has arisen over the matter here in question that I am persuaded that no serious disturbance of property rights will arise by reason of a decision which will give to the appellant what in law and reason he is clearly