76 Neb. 335 | Neb. | 1906
Catherine Martin, the plaintiff in error and plaintiff in the court below, brought this action in ejectment against her son Anthony Martin to recover possession of the northwest quarter of section 17, township 4, range 2 west, Thayer county, Nebraska. Michael J. Martin, the deceased husband of the plaintiff, was the patentee of this land and in his will, which was duly probated in the state of Pennsylvania where he lived and died, and also in Thayer county, Nebraska, where the land is situated, he
After the jury had been instructed and had retired to consider their verdict, they sent the following communication to the court by the bailiff having them in charge: “Is a will made in one state in force and effective in another state, the will having been probated in the state in which it was executed?” In relation to this the record contains the following: “And which said request and question being presented in open court, all parties being represented by counsel, the same was by the court called to their attention, and, upon due consideration whereof, the court, upon his own motion and in answer to the above question and request of the jury, gave the following instruction in writing, said instruction being sent to the jury room by the court through the bailiff, to wit: ‘The jury is instructed, in answer to the attached question, that the probate of a foreign will in this state is the statutory and legal method of proving the facts creating a right of inheritance, and, when probated here in Ne
The method of giving this instruction is assigned as error. It is urged that our statute requires all instructions to be in writing and to be read by the court to the jury, and much force is placed upon section 287 of the code, to the effect that if the jury, after they retire, desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where the information upon the point of law shall be given. The precise question here presented has never before been raised and passed on by the court. Aside from the requirements of our statute, it is a general principle, which obtains everywhere, that all instructions to the jury shall be delivered in open court. 11 Ency. Pl. & Pr. 275; Hopkins v. Bishop, 91 Mich. 328, 51 N. W. 902. We do not mean to say that, where, as often happens, the court is engaged in a trial when a request like that in question is presented, he cannot, by consent of parties, send his answer to the jury by the bailiff in charge thereof; but the record ought to show that consent was given, in order that no controversy may thereafter arise. The exception taken by the plaintiff is not clear and definite, the language being, “to which act of the court, in the giving of such supplemental instruction, the plaintiff then and there duly excepted.” It is possible that this should be considered as an exception to the method of instructing the jury, instead of to the substance of the instruction given, and if it be construed as an exception to the method there can be no doubt that the court was in error in- proceeding as it did. The error, however, was without prejudice, in view of the special findings of the jury. Not only did they find that the defendant had been in the actual adverse possession of the premises for more than ten years prior to the commencement of the action, but
Objection was made to the introduction of the deed of Michael J. Martin to the land in controversy, for the reason that the same was acknowledged before a justice of the peace, and no certificate was attached, as required by statute, showing the official character of the justice. The signatures of the grantors were proved. It is familiar law that, except in the conveyance of a homestead, the acknowledgment is not essential to the validity of a deed. It only goes to the right to have the deed recorded. As between the parties a deed without any acknowledgment is good.
Complaint is made of the refusal of the court to give the following instruction asked by the plaintiff: “You are instructed that if you find from the evidence that the defendant did, at any time within ten years next preceding the filing of this suit, to wit: November —, 1903, recognize or acknowledge the legal estate and right of possession of the plaintiff, in any manner, by the payment of rent for the use of said land to plaintiff or to any other person, or that the defendant recognized the right of plaintiff or any other person, in any manner whatsoever, by the payment of rents, or any acts of the defendant in connection with said land, or the use thereof, inconsistent to the claim of defendant, that he is the owner, then the claim of defendant that he is the owner of said land by adverse possession cannot be sustained, and you must find the legal estate and right of possession to be in plaintiff.” In argument it is insisted that any act of the defendant recognizing ownership by the plaintiff within ten years prior to the commencement of the action defeats his claim of title to the land by adverse possession. There was evidence from which the jury might have found that the de
In its third instruction the court said to the jury: “The third defense interposed by the defendant is that Michael J. Martin, now deceased, and his wife, Catherine Martin, conveyed the premises to him by deed of general warranty, a copy of which is attached to the petition, marked “Exhibit A,” and that by reason and by virtue of said deed he became seized of the premises and is owner thereof.” In her brief the plaintiff says: “As we have pointed out, this is contrary to the answer of the defendant, is contrary to the statement of the case by the court, and is not claimed by the defendant in instructions asked by him -of the court. The answer simply pleads two defenses: First, a parol agreement to convey the land; and, second, the statute of limitations. The deed was simply plead as an incident to the parol agreement and was not set up as a defense, and it has never been claimed by the defendant in this case that the deed was delivered.” The plaintiff must have overlooked the fourth paragraph of the defendant’s answer, as follows: “In pursuance of the proposition above set forth, the said Michael J. Martin, at or about the time last aforesaid, made and executed to this defendant a deed to the land described in plaintiffs’ petition, a copy of which deed is hereto attached, marked “Exhibit A,” and made a part hereof, and thereby conveyed to this defendant an absolute title in fee simple to the premises described in plaintiff’s petition, which deed as aforesaid, before its delivery to this defendant, fell into the hands of one John J. Martin, who concealed it for many years and then, as a condition of its delivery, undertook to extort money or property from this defendant as a condition precedent to the.delivery of said deed.” A pleading alleging that a deed was made and executed sufficiently pleads a delivery, Brown v. Westerfield, 47 Neb. 399, and there was evidence to sustain a finding by the jury that the deed was actually delivered by the grantors to John J. Martin, with directions to deliver it to the
It is insisted that the judgment and verdict are not supported by the evidence. The witnesses contradicted each other on many material points and there are letters in the record, signed by the defendant, .addressed to his mother and other relatives, which are not fully and clearly explained. It is quite well established that the defendant cannot write except to sign his own name, and that these letters were written by his Avife, some of them without his knowledge or at least not at his dictation or direction. These letters point quite clearly to a recognition of his mother’s title, and the explanation is, as above stated, that they were written without his direction or consent. There is also evidence of his payment of rent, but not before the statute of limitations ran in his favor, provided, as found by the jury, he has asserted title to the land in question since his occupancy in 1878 or 1879. On the other hand, there is evidence tending to show that he visited his father just prior to his death in 1886, and was then told that this land was his, and that the deed had been delivered to John J. Martin for delivery to him, and that he received letters to the same effect directing him to request delivery of the deed from his brother John. There is also evidence tending to show that the plaintiff had stated, after the dismissal of another action involving title to this land, that they had always intended this tract for the defendant; that the land was his and that she would not have brought an action had she not been persuaded by some of her other children. Probably we would have been better satisfied with a verdict for the plaintiff, but
The petition in error contains more than 100 assignments. We cannot attempt to notice them all, and many of them relate to the same matter. The special findings, we think, dispose of the matters material to a disposition of the case. That there were some rulings on questions of evidence which were technically incorrect may be true, but these errors could have no weight with the findings of the jury on the question of the making and delivery of a deed to the premises by defendant’s father, and the finding on that question is conclusive of the case.
We recommend an affirmance of the judgment.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.