This is a suit brought, in the district court for. Polk county, Nebraska, by the appellant, Harry I. Hylton, as administrator with the will annexed of the estate of Eva Krueger, deceased, hereinafter referred to as plaintiff, to foreclose an equitable lien that plaintiff claims to have upon a half section of land in Polk county, ■ Nebraska, for accrued annuity payments which plaintiff contends were reserved to the grantors in a deed of conveyance to which further reference will be made later in this opinion. The following facts are alleged in the petition:
On April 11, 1917, August Krueger and his wife, Eva Krueger, were the owners of the real estate upon which the lien is claimed. Shortly prior to this date Fred Krueger, the son of said owners, died leaving as his heirs his widow, Emma Krueger, and his children, Amanda Bredehoft, Adella Krueger, Harold Krueger, Walter Krueger and Erwin Krueger, all of whom are made defendants. On the 11th day of April, 1917, these owners simultaneously exe
The contract also sets out that, in consideration of the leasing of the premises to defendant Emma Krueger as provided for therein and the conveyance of the premises by grantors to defendant children, the defendant Emma Krueger renounces, relinquishes and conveys, whatever claim she may have, whether well founded or not, in said
In exhibit B, the deed of conveyance which is the foundation of defendant children’s title to the property in question, there is this reservation: “This conveyance is made subject however to a lease (of said described premises) heretofore made this day by us the said grantors to Emma Krueger the surviving widow of said Fred Krueger, deceased, which contains an annuity contract or agreement in favor of us the said grantors or the survivor of. us, which annuity is hereby reserved.”
The petition contains the further allegations that said Eva Krueger departed this life on the 6th day of August, 1935, and that the plaintiff is the duly qualified and acting administrator with will annexed of her estate, and that as such administrator he is entitled to the possession of all the assets belonging to said estate; that said Eva Krueger was at the time of her death the surviving widow of said August Krueger who had departed this life on or about the 31st day of May, 1926; that these annuity payments were expressly reserved from the grant of the real estate to said children and were made a lien and a condition upon said grant; that, upon the execution of exhibit B, defendant Emma Krueger and defendant children entered into possession and ownership of said real estate and ever since said date have been the owners of and in possession of said real estate, subject, however, to the annuity payments set forth in the petition; that since the 11th day of April, 1917, the said August Krueger and Eva Krueger during their lifetime had a lien upon the real estate for the full amount of said annuity payments, and that said lien is a part of the assets of the estate of Eva Krueger, deceased; that the title of defendants at all times since said 11th day of April, 1917, has been subject to such lien; that
Defendant Emma Krueger filed a demurrer to the petition of plaintiff for the reason that several causes of action had been improperly joined therein. As the question raised by her demurrer is not important here, we will make no further reference thereto. Defendant children filed a demurrer to the petition of the plaintiff for the following reasons and upon the following grounds:
“(1) That the plaintiff’s exhibit A and B, attached to and made a part of the plaintiff’s petition, neither separately, ■ nor together, constitute the annuity payments pro
“ (2) That the petition of the plaintiff fails to state facts sufficient to constitute a cause of action against these defendants or any of them.”
This demurrer was sustained, and the plaintiff having elected to stand upon his demurrer and refusing to plead further, the case was dismissed, from which action this is an appeal.
For the purposes of this case, all the allegations of the petition well pleaded are assumed to be true.
These two instruments were clearly executed as a part of one transaction. Their context clearly indicates that. They were both executed at about the same time and were filed for record within fifteen minutes of each other, the deed of conveyance being, filed last. The contract exhibit A defined what the annuity payments were to be. The deed of conveyance transferred the property involved to defendant children with a reservation in favor of the grantors, which reservation is expressly stated therein. In these circumstances but one conclusion can be drawn; that is, that the grantors never granted away the entire title free of encumbrance to defendant children.
The following principles of law are applicable here: Where a contract and a deed are entered into simultaneously as a part of one transaction, as in this case, and in the contract there is a provision for a stipulated annuity which is referred to in the deed, the effect of such stipulation is the same as if it were in the deed of conveyance. Peters v. Peters, 62 S. Dak. 563, 255 N. W. 466. The intention of the grantors in a deed must be interpreted in the light of all the attending circumstances, and where a recorded instrument is referred to in a subsequent deed, it becomes a part of the subsequent deed to the extent necessary to
The petition of the plaintiff stated a cause of action. The trial court erred in sustaining the demurrer of the defendant children and in dismissing the case.. The judgment of the trial court is reversed and the cause is remanded to the district court for further proceedings.
Reversed.