277 N.W. 807 | Neb. | 1938
This is an appeal from the district court for Dawson county, wherein said court found for the plaintiff and set aside a certain reconveyance agreement as constituting a cloud on plaintiff’s title to land, from which decree the defendants appeal.
Plaintiff’s petition alleges the .ownership of a certain quarter-section of land, and an arrangement made by him with defendants whereby plaintiff released a 7,000-dollar mortgage, accepted a warranty deed from the defendants, together with a farm lease running for three years, and an optional agreement to reconvey the premises upon defendants paying the sum of $1,005.38 delinquent interest and taxes, on or before March 1, 1936, and, in the event that defendants complied with such agreement, plaintiff would carry back a mortgage on said land in the sum of $7,000. The optional agreement was filed with the register of deeds by the defendants February 11, 1936, and this action is brought for the purpose of having the optional agreement declared null and void; asking that the cloud upon plaintiff’s title be thereby removed, and that plaintiff be decreed to be entitled to immediate possession of said premises.
The answer to the cross-petition specifically denies the oral agreement, as alleged in such cross-petition, and that rents were to be applied on the payment of the mortgage, and denies that any part of the debt of $1,005.38 has been paid. The defendants’ reply to plaintiff’s answer to defendants’ cross-petition is a general denial.
The evidence discloses that defendant Reta Shuler is a cousin of plaintiff and the parties had always been on friendly terms; that in 1929 the plaintiff loaned defendants the sum of $7,000, they being the owners of the fee title to the southeast quarter of section 13, township 10 north, range 23 west of the 6th P. M., in Dawson county, Nebraska ; that defendants failed to pay the interest and taxes, as provided in such mortgage. According to plaintiff, he wanted the delinquent taxes and interest paid, amounting to $1,005.38, and the defendants wanted to save foreclosure of the mortgage; therefore,- the warranty deed, the farm lease and the repurchase agreement were entered into, the plaintiff agreeing that if said sum of $1,005.38 should be paid on or before March 1, 1936, and rent paid in the customary terms, he would reconvey the land to the defendants, and take back a 7,000-dollar mortgage thereon.
Defendants contend that on or about September 16,
Defendant Charley L. Shuler testified that he met plaintiff on the street in Lexington in the spring of 1935 and .asked for an accounting and reconveyance of the land to the defendants in accordance with their agreement; that plaintiff stated there was no need of doing it at that time; that they might just as well let it run for another year and then have a settlement; and that plaintiff stated that defendants could rest assured that he did not desire their land. This meeting is denied by plaintiff. In the spring of 1936 defendant Charley L. Shuler again requested an accounting from the plaintiff and was told by plaintiff that he wanted the money or the premises.
During the period of the lease, the defendants paid rent in the sum of $3,896.24. The plaintiff paid the taxes and water maintenance, and, according to the books kept by the defendants, there would be a total credit to plaintiff of $1,661.74. In addition thereto, the defendants expended the sum of $554.20 for permanent improvements on the premises, and $2,234.50 should be credited to the mortgage debt, which would leave a balance of $5,770.88, for which
On April 30, 1933, during the course of the lease, plaintiff’s wife, in reply to a letter asking that wallpaper be furnished for the house on the farm, wrote as follows: “You wrote me about the paper. Now we don’t hardly consider ourselves landlords for at least three years. While we expect rent which will hardly be the interest that you would be paying and you know that we haven’t had interest for two years and have paid taxes for 2 years nearly three now * * * Arthur (the plaintiff) says our personal agreement was if you put anything on the place reasonable paid for it we were to keep track of it and if you couldn’t redeem the place we were to pay you and same way we were to keep our account of what we put on and you were to pay us. I know the paper can’t be so very much now you can go ahead and get the paper we will pay for it that way.” This letter indicates that plaintiff considered himself only a qualified owner of the premises; that he did not consider himself as landlord nor the defendants as tenants, but that the relationship of creditor and debtor existed.
The evidence further discloses that the value of the land in question at the time of the execution of the original mortgage was $10,000. At the time of the execution of the instruments in question, September 17, 1932, it was from $9,000 to $11,000, and on the date of the alleged redemption period, March 1, 1936, from $11,000 to $11,500. The only statement of value appearing in the record contra is by the plaintiff, that the land was not worth the amount of the mortgage on September 17, 1932. The total indebtedness was $8,005.38, on September 17, 1932. There has always been an equity in the land, and on March 1, 1936, such equity was in excess of $2,000.
In this connection we quote from Snoke v. Beach, 105 Neb. 127, 179 N. W. 389, wherein this court said (p. 132): “The value of the land- as compared with the consideration paid for it is also an important factor to, be considered in
If the plaintiff should prevail, the result would be as follows: At the outset, plaintiff wanted paid his back taxes and interest, in the sum of $1,005.38. He has a 7,000-dol-lar mortgage on a quarter-section of land which was worth on March 1, 1936, from $11,000 to $11,500. His share of the rents was $3,896.24. On March 1, 1936, taking into consideration the value of the land which plaintiff would receive for his mortgage, crediting him with the amount of $1,661.74 for back taxes, interest and water maintenance, and giving him the pet rent of $2,234.50, he would have approximately $4,000 more than the indebtedness against the land.
In view of the evidence, we believe that the oral contract made contemporaneously with the execution and delivery of the written agreements constituted a condition upon which the performance of the written contract or agreement was to depend. The rule is announced in Norman v. Waite, 30 Neb. 302, 46 N. W. 639, as follows: “The existence of a written contract or instrument, duly executed between the parties to an action and delivered, does not prevent the party apparently bound thereby from pleading and proving that contemporaneously with the execution and delivery of such contract or instrument the parties had entered into a distinct oral agreement which constitutes a condition on which the performance of the written contract or agreement is to depend.” This holding was followed in Exchange Bank v. Clay Center State Bank, 91 Neb. 835, 137 N. W. 845. See, also, Davis v. Sterns, 85 Neb. 121, 122 N. W. 672.
And in Seminole Bond & Mortgage Co. v. Investors Realty Co., 127 Neb. 193, 254 N. W. 732, we held: “Parol evidence is inadmissible to vary the terms of a written agreement, complete on its face, but such evidence may be received to show that a written obligation has been dis
Plaintiff cites several cases on the question of the admissibility of parol evidence to prove a collateral or contemporaneous oral agreement, all of which are the law in. this state. In Weidenfeld v. Olson, 132 Neb. 303, 271 N. W. 806, we held: “Parol evidence is inadmissible to prove a collateral or contemporaneous oral agreement to vary or contradict the terms of a written lease, which, upon inspection, appears to be a complete contract, embracing all the particulars necessary to make a perfect agreement and designed to express the whole arrangement between the parties.” And to the same effect is Spiegal & Son v. Alpirn, 107 Neb. 233, 185 N. W. 415. In the latter case it was said (p. 245) : “The test which most of the courts have applied to determine whether parol evidence is admissible to prove a collateral agreement is whether or not the writing appears upon inspection to be a complete contract, embracing all the particulars necessary to make a perfect agreement and designed to express the whole arrangement between the parties, and whether or not the parol evidence is consistent with, and not contradictory of, the written instrument.”
Construing the three written instruments togetner, and upon an inspection of them, we do not feel that they embody the complete contract between the parties; neither do they contain all the particulars necessary to make a perfect agreement, and they do not, taken as a whole, express the whole arrangement between the plaintiff and defendants. From all the evidence and the circumstances, we believe that the parol testimony was admissible.
The reconveyance agreement is indefinite and uncertain as to the length of time the mortgage was to run and the rate of interest it was to bear. We are convinced that the relationship of creditor and debtor existed as between the plaintiff and defendants. Therefore, the relief as prayed
Reversed.