28 N.W.2d 595 | Neb. | 1947
This action was begun by Earl Karls, as plaintiff, in the district court for Douglas County to secure the specific performance of an alleged contract to convey real estate. Upon trial of the issues joined by the pleadings the trial court denied specific performance, dismissed the plaintiff’s petition, and provided for the return to the plaintiff of the amount of payment that the plaintiff had made upon the purchase price. The plaintiff appeals to this court, after an order overruling his motion for a new trial. We affirm the decree of the trial court.
The only plaintiff is Earl Karls, and the only defendants are John M. Nichols and Edith Nichols, who, at all times involved in this action, have been and are husband and wife. The defendants filed separate answers to the plaintiff’s petition. The answer of the defendant John M. Nichols alleges, in legal effect, that he accepted the sum of $200 as a part payment of the purchase price of the real estate described in the plaintiff’s petition, but that the terms of said contract provided that its going into effect was conditioned upon his said wife approving of its terms, and that his said wife never signed the contract and never consented to its terms. Both answers allege that the real estate described in the plaintiff’s petition is the homestead of the two defendants, and that defendant Edith Nichols never at any time consented to its sale.
The evidence shows that the defendant John M. Nichols became the owner of the three lots involved in 1931 or 1932. This property is described in the plaintiff’s petition as follows: “Lots Five (5) Six (6) and Seven (7), Block Fourteen (14), Carter Lake View, an Addition to Douglas County, Nebraska; further known as 814 Camden Avenue, Omaha, Nebraska.” Soon after acquiring this property the defendants erected a house upon the lots. They moved into the house and began making it their home about the year
On September 5, 1946, the plaintiff went to the place of residence of the defendants and there talked with the defendant Edith Nichols. He told her that he had been informed that the property involved was for sale. She directed him to where he could find her husband at his work. The plaintiff on that same day talked with the defendant John M. Nichols. Later the same day at the residence of defendants the plaintiff was furnished a key to the house in order that he might examine the
“Omaha Nebraska Sept. 5, 1946.
Received of Earl Karls Two Hundred & 00/100 Dollars, For deposit on house at 814. Camden including three Lots #5-6 & 7 block 14. East Omaha. Balance of 1800.00 to be paid cash on delivery of deed & abstract. $200.00 J. M. Nichols”
On the following Saturday the defendant John M. Nichols notified the plaintiff that the sale could not be made for the reason that his wife would not consent to it. Edith Nichols is shown not to have been present during any of the negotiations leading up to the agreement of sale, other than when she directed the plaintiff to where he could find her husband, and is shown not to have known of the agreement until after it had been made. This action was begun on September 16, 1946, 11 days after the date of the agreement.
We are not concerned with the question of whether or not the written memorandum, or'other act, was sufficient to remove the agreement from within the requirements of the statute of frauds. No such question is raised by the parties. The defense, if such it be, raised by the answer of John M. Nichols to the effect that the agreement was not to become complete or effective until approved by his wife is not supported by any evidence. Section 40-104, R. S. 1943, provides in part as follows: “The homestead of a married person cannot be conveyed or encumbered unless the instrument
A homestead, as defined by statute, once established, is presumed to continue as such, and the burden of proving a waiver, or loss, or abandonment thereof, is upon the party asserting such waiver, loss or abandonment. 29 C. J., Homesteads, § 403, p. 961; Doman v. Fenton, 96 Neb. 94, 147 N. W. 209; Whitford v. Kinzel, 92 Neb. 373, 138 N. W. 597. In this case the evidence concededly shows the premises involved to have been the homestead of defendants continuously from sometime in the year 1934 to sometime in 1941. The removal in 1941 of defendants with their children to a home occupied by Anna Taylor across the street, to allow their homestead to be occupied by the father and mother of defendant John M. Nichols, is as much consistent with the existence of an intent to return to their homestead, under the circumstances shown in this case, as it is with the nonexistence of such intent. The flood in 1943 made the premises, and also their place of abode in the home of said Anna Taylor, unfit for occupancy until major repairs were made. Aside from the prem
For reasons above stated the decree of the trial court is affirmed.
Affirmed.