80 Neb. 103 | Neb. | 1907
This action was brought to partition the southeast quarter of section 29, township 10, of range 2, in York county, Nebraska. The land was owned by James Harrison, who died intestate in February, 1905, leaving as his
In a brief of exceptional merit plaintiffs insist that this court has gone to extreme lengths in enforcing oral agreements for the conveyance of real estate, and that there is danger of wholly ignoring the statute of frauds and the statute of wills in a too liberal policy of allowing the title to real estate to be questioned or ordered transferred from one party to another on evidence which is wholly oral. It
It being settled that the statute of frauds does nol stand in the way of the enforcement of contracts of the character alleged by the defendant, the important question in this case is: Does the evidence entitle him to the relief awarded by the district court? In the fall of the year 1891 the defendant was rooming with O. J. Wineingen in the city of Lincoln. One evening 'during the fall he brought his father to the house, where lie remained with him during the night. Mr. Wineingen testified that in a talk between himself, the' defendant and defendant’s father, had during the evening and before bedtime, the old gentleman said that “he wanted Fred to go with' him and live with him; that he had no home; that he had one boy that he tried to help, but it seemed that he did not take any interest in him, and thought if he could get Fred to go home with him he was going to buy a farm, or had a farm; I won’t sáy as to that, but he wanted to get him with him to live with him, and if Fred wanted to get married he would have a home with Fred, and Fred would have what was left.” Mrs. Wineingen testified that the old gentleman said “that he had come to see if he could get Fred to
The fact that Fred abandoned the plumber’s trade and went to live with his father upon the farm, where he worked without pay of any kind for five years, or until his marriage in 1898, is a circumstance which, we think, strongly corroborative of the claim that this service was
The testimony of the neighbors to declarations of James Harrison that the farm was bought for Fred and -that Fred was to have it after his death was taken by the court upon the principle that declarations against interest are always admissible, and that such declarations on the part of the decedent were in derogation of his absolute title to the farm; that he recognized and admitted that defendant had an equity in the land. The plaintiffs offered to show that on one or more occasions the decedent had made statements to the effect that he would not give his property to one child; that he would divide it equally among his children; that he stated that they wanted him to give the place to Fred, but he would not get it, and other similar declarations claimed to have been made by him. The court refused to receive this testimony, and error is claimed. Foster & Foster v. Nowlin, 4 Mo. 18, is cited as an authority to the effect that declarations made by a party since deceased, declaring that certain property belonged to him, was admissible and competent to rebut other evidence of his declaration to the contrary. We do not think that the weight of authority sustains this holding. In Wilson v. Patrick, 34 Ia. 362, it was held that antecedent declarations of a party that he was absolute owner of certain property were not admissible to counteract his admissions that he owned it as security only; and in Nutter v. O’Donnell, 6 Colo. 253, it is said that declarations against interest cannot be annulled or explained away by counter declarations. The rule announced in Foster & Foster v. Nowlin, supra, is no longer the law in Missouri, as that case is disapproved and the principle repudiated in Turner v. Belden, 9 Mo. 797.
The evidence satisfies us that the decree entered by the district court was the proper one, that there is no reversible error in the record, and we recommend an affirmance of the judgment.
Affirmed.