28 Neb. 84 | Neb. | 1889
This action was brought in the district- court of Douglas county by the plaintiff against the defendant to foreclose a mechanic’s lien.
On the trial of the cause the court found the issues in favor of the defendant Wilson and dismissed the action.
The petition is substantially in the ordinary form.
Maria Wilson filed a petition to intervene, which being sustained, she filed an answer, in which, after setting out her purchase of the lot in question, she alleges: “That on, to-wit, the thirty-first day of January, A. D. 1888, George E. Gibson, the agent of said defendant Maria Wilson, at the county and state aforesaid, did, as agent of said last named defendant, make an oral, verbal contract to and with said defendant N. M. Lundin for the sale of all her right, title, and interest in said premises to said N. M. Lundin; that such contract was oral and rested entii’ely in oral agreement; that no note or memorandum thereof was ever reduced to writing or signed by any one; that said contract could not and did not vest or convey to said N. M. Lundin any right, title, or interest in or to said premises; that said N. M. Lundin did not at any time have possession or own any right, title, or interest in or to the said premises, and that said N. M. Lundin has not now any right, title, or interest in or to said premises.
“ Said defendant Maria Wilson, further answering, says
She also denies that she, or her agent, delivered possession of said lot to Lundin.
The testimony tends to show that about Januazy 31st, 1888, one George E. Gibson, az’eal estate agent in Omaha, and duly authorized to sell the lot in question, negotiated a sale of the same to the defendant N. M. Lundin for the sum of $800; ozie-fourth of the sum was paid at the time of the purchase and the remainder to be paid in ninety days from that date.
To obtaizz the $200 part payment, Lundin and one Roos executed a note to Gibson, secured by a mortgage ozi real estate owned by them, and he (Gibson) either loaned them the money or obtained it on those securities from a loan company for which he was agent. The question how the money was procured does not seem to enter into. the case, as it was izz fact obtained and paid upon the contz-act for the
The attorneys for Wilson contend that this being 'im oral contract, and Lundin not having possession of the lot, the contract cannot be enforced, and a large part of their brief is taken up with the citation of authorities to sustain that proposition.
As a matter of fact, however, Lundin did immediately enter into possession of the lot in question and erected a house thereon of the value of $700 or $800 and the mechanics’ liens in suit were created by the erection of said building. The work was nearly completed before the expiration of the ninety days from January 31st, 1888. Lundin seems to have left the state and has failed to pay the balance due on the lot or to the mechanics and material men for the erection of the house. This house is now in the possession of Wilson. She seems to claim the same free from any liens, etc. It is gravely urged that for the privilege of an option on the purchase of a lot more than two miles north of the post-office in the city of Omaha, and for which, so far as appears, the full value was agreed to be paid, Lundin actually paid $200 for the privilege of purchasing the same in ninety days. It is not claimed that he had any property adjoining or near that place that would be enhanced in value by the purchase. The sale was made, therefore, we infer, at the full value of the lot and the $200 paid as one fourth of the consideration therefor. To that extent, therefore, Lundin has an interest in the lot.
Forfeitures are odious in law. (Dickenson v. State, 20 Neb., 81; Estabrook v. Hughes, 8 Id., 501; Hibbeler v. Gutheart, 12 Id., 530.) In the latter case it is said, after showing that the lessee was in default: “It was evidently the intention of the legislature, in passing the law con
While in particular cases, by reason of peculiar circumstances, it is necessary to sustain a forfeiture, yet where any considerable portion of the purchase price of real estate has been paid and possession taken under the contract, the purchaser has an equity in the premises to the extent of the money paid by him, and it is gross injustice to permit the seller to retain this money and also the property free from any claim of such purchaser; and particularly is this true where, by reason of such forfeiture, creditors of the purchaser will be deprived of the amount due them. In an ordinary case this cannot be permitted. The seller is entitled to the price of his property as agreed upon, and the
Judgment accordingly.