86 Neb. 148 | Neb. | 1910
This is the second time this case has been before us. For our former opinion, see 79 Neb. 39. At that hearing a judgment in favor of plaintiff was reversed on the ground that it Avas not sustained by sufficient evidence. On the second hearing plaintiff and defendants each asked affirmative relief. The court denied relief to either party, and dismissed both the petition and cross-petition. Defendants appealed, and plaintiff presents a cross-appeal.
The petition alleges substantially: That in January, 1880, defendant Charles J. Bowlby, being the owner in fee simple of the southeast quarter of the northeast quarter of section 33, township 8, range á east of the Sixth principal meridian, in Saline county, Nebraska, sold the same by verbal contract to John Lanliam for the sum of $1,100, payable as follows: “Said sum of $1,100 to be credited upon the books of John Lanliam and paid for in building material, rent, and other materials to be furnished for the said Charles J. Bowlby by the said John Lanliam, and the said Charles J. Bowlby agreed to con
The answer alleges substantially as follows: Admits the relation of defendants as husband and wife and the relationship of the other parties as alleged by plaintiff; admits the death of John Lanham, and that the records show the title to the lands in controversy, to wit, the southeast quarter of the northeast quarter of section 33, township 8, range 4 east, in.Saline county, Nebraska, in the defendant Charles J. Bowlby; denies generally all the allegations of the petition not expressly admitted; specifically denies that the said John Lanham or either of his heirs or successors or the plaintiff ever had possession of said real estate adverse to defendants; avers that said John Lanham in his lifetime “as'tenant at sufferance of the said Charles J. Bowlby” went upon the land and removed ice therefrom “under the expectation that he would buy said real estate of the said Charles J. Bowlby; that he never bought it; that, on the contrary, he entirely
For reply, after admitting the allegations in the first paragraph of defendants’ answer, and denying generally all other allegations in the answer except such as are admitted by the reply, plaintiff alleges substantially that John Lanham during his lifetime went onto and removed ice from the lands, and removed timber therefrom during his lifetime; that in the year 1880 or thereabout the said John Lanham purchased from defendant Charles J. Bowlby the land in controversy at an agreed price of $1,100, which amount was to be credited on the books of John Lanham and paid for in rent, building and other material furnished to and for the said Charles J. Bowlby by the said John Lanham. (setting out the same statement referred to in the petition); that during the year 1888 plaintiff had under the terms of the said contract completely paid the purchase price of said premises, and was entitled to a conveyance thereof; that at the time of the completion of the payment of the purchase price in
By reason of the death of John Lanham, the evidence in this case is not of as satisfactory a character as we could wish, but there having been two trials of the case in the district- court, at which each side was represented by able and experienced counsel, there is every probability that all the evidence was produced upon the last trial which' can ever be furnished by either party. Indeed, this condition was admitted to exist by counsel in their oral arguments at the bar. To allow the decree of the district court therefore to stand would be to leave the parties suspended in mid-air, as it were, and permit the title and the true ownersip of the land in controversy to remain in an unsettled condition for all time. This should not be done unless the evidence is so entirely unsatisfactory that no reasonably just conclusion as to the rights of the parties can be drawn therefrom. We agree with the statement made by Mr. Commissioner Epperson at the former hearing that the evidence clearly establishes that plaintiff’s ancestor took possession of the property in controversy under a verbal agreement with the defendant, and that he and his heirs have been in continuous occupancy thereof from 1880 until the present. We think the evidence also fully establishes the fact that that "verbal agreement” was a verbal sale of the lands in controversy by defendant Bowlby to plaintiffs ancestor, and that under such verbal sale the said John Lanham, with the full permission of defendant Bowlby, entered upon such possession. From that time until the time of the trial John
Mr. Bowlby in his own behalf testified that about 1889 or 1890 Mr. Abbott came to his office with a bill for brick: “My remembrance is it was about $300. He stated that he wanted to make some arrangements for the land, and he asked if I would make a deed to himself or his wife, I think his wife. My remembrance is it was his wife; and they would fix the balance in some way, he didn’t say how, but just they would fix the balance. Q. The balance of what? A. Due on the land. Q: Balance over what? A. Over the bill that was presented to me at that time. Q. Wanted yon to allow that bill, then, did he? A. Yes; I suppose so, that was the inference, and I declined to do so. Q. Did he state anything about how much the balance was? A. No, sir; didn’t say anything about it, never talked on that subject. I asked for the balance, the amount, the bill was before me, and I thought I had kept it, but I never have been able to find it. It was a bill for bricks I had obtained from them, I presume in 1886, ’87, or maybe 1889, at different times. Q. State if he gave any reason why he wanted the deed made
This testimony by Mr. Bowlby is quite significant. His answer to question 540 shows that he had in mind the fact that a deed should be made to somebody, but the reason Avhich he says he gave Mr. Abbott for not making the deed to Abbott’s Avife Avas that he did not feel it would be safe to make a deed to her for the reason “that at that time Mr. Lanham Avas involved and had creditors and judgments against him”, and that he did not think he AAonld be safe in making a deed to anybody else. There is not a particle of testimony in the record to show that what he claims he then said about Mr. Lanham Avas true, auz., that Mr. Lanham “Avas involved and had creditors and judgments against him.” On the contrary, the record shows that Mr. Lanham at the time of his death, which, according to Mr. Bowlby’s testimony, occurred only a year later, Avas entirely solven:, his estate, outside of the land in controversy, paying all of his obligations. Then, again, it Avill be observed lie does not give a direct answer to the question “Noav, had the land been paid for, or any part of it?” His answer is: “It had not according to the agreement or by the agreement.” He does not say that-it had not been paid -for in other Avays. He does not attempt to testify that, after Mr. Abbott Avas there asking for a deed, he ever went to Mr-. Lanham prior to his death,
Reversed.