61 Neb. 631 | Neb. | 1901
This action to recover damages for breach of a covenant'against incumbrances was commenced by Charles S. Hesser against Sylvester Johnson in the county court of York county and removed thence by appeal to the district court. The land described in the deed executed by the defendant to the plaintiff is situate in Phillips county, Colorado. The petition alleges that it was, at the time of the sale and transfer, subject to a lien for taxes which the plaintiff was compelled to discharge with his own funds. The answer of the defendant, after admitting the execution of the deed, continues as follows: “But defendant alleges that the land mentioned in said conveyance in said petition described, was so conveyed in exchange for the west one-half of the southwest quarter of section No. 19, in township No. 11, north of range No. 2,
The trial court charged the jury that the paragraph of' the answer above set out was a plea of confession and avoidance. We think this was a correct construction of the pleading. The allegation that the plaintiff had been permitted to retain out of money due to the defendant a sum sufficient to pay the taxes on the Colorado land, was an implied admission of the existence of the tax lien. Dinsmore v. Stimbert, 12 Nebr., 433; School District v. Holmes, 16 Nebr., 486; Adams v. Osgood, 60 Nebr., 779. On the trial the defendant also admitted the lien in the course of his examination as a witness and by stipulating that the plaintiff had paid $97.05 “to redeem said land from tax sales.” Unless there had been a lien there could not have been a redemption. The covenant against incumbrances • and the breach of it having been conclusively settled in favor of the plaintiff by the pleadings and evidence, the only question for the jury to pass upon was whether the affirmative defense above mentioned had been established. This question w-as submitted under proper instructions and was, in our judgment, correctly decided.
There was no error in refusing to permit the defendant to prove the written laws of Colorado by “Hubbell’s
We concur in the decision of the trial court sustaining a demurrer to the defendant’s plea of res adjndicata. It appears from the record that at the May, 1895, term of the district court two judgments of the same purport were rendered in this case in favor of the defendant; that the second one was reversed by this court in an appropriate proceeding (Hesser v. Johnson, 57 Nebr., 155), and that the one first rendered was at a subsequent term expunged by order of the district court. The order expunging the first judgment was made by the district court in the exercise of a lawful jurisdiction, and whether it is right or wrong it is valid, and will bind the parties until set aside in a direct proceeding instituted for that purpose. It can not be overthrown by a collatéral attack. The former adjudication pleaded by the defendant is not a defense because the evidence of it does not now exist. But we are disposed to think the ruling on the demurrer may be sustained on another and a broader ground. The court had complete control of the case during the term at which it was tried. It had authority to vacate its first judgment and enter the second. Both judgments evidenced the conclusion of the court—the decision of the law-—upon the merits of the controversy; and it would seem that the first judgment, since there could be no reason for preserving it, should be regarded as merged in the second or constructively vacated by it.
The action being grounded on a contract in writing, it was not barred by the statute of limitations. The fact that under the laws of Colorado the covenant against in
Tbe conclusions at wbicb we bave arrived upon tbe points considered lead necessarily to an affirmance of tbe judgment, and furnish a sufficient reason for not inquiring into tbe correctness of some other rulings assigned for error and discussed by counsel at tbe bar and in tbe briefs. Tbe judgment is
Affirmed.