92 Neb. 419 | Neb. | 1912
This suit was instituted in the district court for Saunders county to quiet title to the east half of the northwest quarter and the north half of the northeast quarter of the southwest quarter of section 25, township 14, range 8, in said county. The decree quieted plaintiff’s title to an undivided one-half interest in the land, and dismissed the suit a.s to tlie other half. Plaintiff appeals.
Plaintiff relies upon a parol contract, which he sets out as follows: “That on September 1, 1896, and at many divers times prior and subsequent to said day, said Peter A. Carlson and his wife, the defendant Eva Charlotta Carlson, orally promised that, in consideration of the plaintiff’s services and of the plaintiff remaining with them on their farm until said Carlson’s death, they would leave to plaintiff, by will or otherwise, all of said Carlson’s estate of which he would die seized, and that plaintiff would be made Carlson’s residuary legatee; that in consideration of said promises, and relying thereon, the plaintiff yielded to the request and agreed thereto; that he refused to go with his own father, that he sacrificed all other opportunities for his own advancement, and remained with the said Peter A. Carlson, serving and obeying said Carlson in all his wishes and desires, and rendered unto said Peter A. Carlson full and faithful service in implicit reliance upon the said oral agreement; that pursuant thereto said Peter A. Carlson did execute a will
The defendant Eva Oharlotta Carlson entered her voluntary appearance in the suit, and. filed her answer, in which she admits all the allegations contained' in and consents to the prayer of the petition; and further alleges “that this action is brought with her consent and to satisfy her wish and desire that the agreement between this defendant’s lamented husband and the plaintiff may, in justice and equity, be fulfilled, so plaintiff will be the sole residuary heir of Peter A. Carlson, deceased.”
The heirs of Peter A. Carlson being all nonresidents of Saunders county and unknown to plaintiff, service was had upon them by order of the court, in accordance with the provisions of the statute in such case made and provided. After disposing of certain motions and demurrers, which we deem it unnecessary to refer to, Ida Sofia Ahlen filed her separate answer, alleging that said Carlson left as his only heirs at law and next of kin Eva Oharlotta Carlson, his widow, Carl W. Carlson, a brother., and John Emil Larson, a nephew, and Ida Sofia Ahlen (herself) a niece, the last two being children of a deceased sister of said Peter A. Carlson. She further admits the death of Carlson; the appointment of Johnson as executor; that Eva Cliarlotta Carlson is the widow of decéased; the ownership of the land by Carlson prior to his decease; and that plaintiff has resided upon the premises as tenant of said Carlson for several years last past; alleges the execution of the last will of Carlson; that the same had been duly admitted to probate (attaching a copy of the will to her answer) ; alleges that Carlson and his wife resided upon the land as their home; that neither of them during said time owned or possessed any other lands,
Carl W. Carlson first appeared especially, objecting to the jurisdiction of the court over him, Avhich Objection was overruled. He thereupon ansAvered separately; his ansAver in all essentials being similar to the answer of defendant Ahlen. John Emil Larson, the nephew referred to in the answers of Mrs. Ahlen and Carl W. Carlson, made no appearance.
The reply to the three answers above set out denies' all allegations of such answers, except such as admit allegations in plaintiff’s petition.
The decree found that, under the pleadings and answer of defendant Eva Charlotta Carlson, plaintiff is entitled to judgment against her; finds all the allegations of the three ansAvers above set out to be true; and that as to said defendants and each of them the plaintiff has no cause of action; finds that the land in controversy was in September, 1896, occupied by Carlson and his wife as their homesteadthat the .same constituted their homestead at all times thereafter until the death of Peter A. Carlson; that the value of the lands in September, 1896, was $3,000; adjudged that the plaintiff is the owner of an undivided one-half of the lands, “being such interest only as the defendant Eva Charlotta Carlson had in said lands as the Avidow of Peter A. Carlson, deceased;” quieted in plaintiff title to such half interest, subject to .any rights the executor may have for the payment of debts and expenses of administration; that as to the defefi.dants, other than Eva Charlotta Carlson, plaintiff’s action be dismissed.
The issues presented for our consideration are stated in
The first question is not accurately stated. It is not alleged that Carlson agreed to convey “the land described in the petition.” The allegation is that he agreed to “leave to plaintiff, by will or otherwise, all of said Carlson’s estate of which he should die seized.” As thus modified, the question must be answered in the affirmative.
The defendant Mrs. Carlson testified, substantially, as follows: “I am 88 years old. I have lived in Saunders county about 35 years. * * * We have lived on this farm over 20 years. My husband and I had four children, but they are all dead. My oldest daughter had one child, a boy, but he died when he was two months old. All my children have been dead many year’s. My oldest daughter’s little boy died about 16 years ago. Anyway, Charlie Moline is my son. He was four years old when he came to us. He is married and has got six children. He has lived on this farm since he was four years old. He has been in this place always until now, and I hope he will stay here too. His mother was dead, and his father ashed us to take him, and I say, ‘Well, if I can be mother for him I will, I don’t want to take him if T cannot be like a mother.’ My husband, Mr. Carlson, was there and heard that talk, and he wanted to do that too; both of us wanted to take the boy. Mr. Carlson said: ‘We’ll do the best we can for the little child,’ and Carlson said he wanted to take him for his son. He said he would take him for his boy, and we say: ‘He shall come to us and stay with us forever, and afterwards he can attend to us while we be old,’ and at that time it was said that all our property should belong to Charlie Moline after
The witness A. F. Johnson testified, substantially: “I am 70 years old, and now live at Mead; have lived there about 6 years. Before that I lived on a farm 4 miles from Peter A. Carlson’s farm. Carlson and I visited back and forth a good deal. I was well acquainted with Carlson; I knew him since we were 18 years old. * * * Mr. Carlson and I talked about his farm and about Charlie
The witness Reim testified that he was the assessor. “I called at Mr. Carlson’s home to assess him; we talked about one thing and another, and he finally got to telling me that he received a letter from Charlie’s father; that he wanted the boy back; and Carlson told me that he had made agreements now with Charlie and his father that if he stays until the old folks were dead that everything that was theirs, real and personal, was Charlie’s.”
The witness Baur testified that Carlson traded with him in his store; that on one occasion “we got to talking, and he told me his whole life story, how he had to go through life, and how he struggled; and, as he was coughing pretty heaAy, I says, ‘It’s about time, old man, you prepare for death,’ and one thing brought on another, and he said he has got it pretty nice and everything is all right, and I asked him who would get all the stuff he left behind, and he says, ‘All, is Charlie’s, Charlie Moline;’ he told me at one time that Charlie Moline took care of his things, and that in case something should happen that he gets his estate.”
Five other witnesses testify to statements made by Carlson of quite similar import. It is also shown that, when plaintiff married, Carlson built a cottage on the farm, into which he and Mrs. Carlson moved, and in which they lived until the death of Mr. Carlson, and that plaintiff, with his wife, resided in the old house. Carlson and his wife retained about five acres for a garden, and plaintiff tilled the farm, paying Carlson $300 a year rent therefor. During all of the years that plaintiff worked upon the farm, up to the time of his marriage, he never received wages of any kind for his services. Every act and statement of Carlson’s during the nearly 30 years of plaintiff’s association with him, except the making of the last will, clearly indicate that the relations existing between him and his wife on the one side and plaintiff on the other were as claimed by plaintiff.
It is hard to see how a stronger case could be made in support of a parol agreement of the kind alleged in this case. To our minds the evidence is clear and satisfactory to the effect that Mr. and Mrs. Carlson made the agreement set out in plaintiff’s petition, and that plaintiff fully performed his part of the contract. The fact that Mr. Carlson in his later years became addicted to the use of strong drink, and that while intoxicated he quarreled with the plaintiff, for no other reason, as appears from the record, except that plaintiff interfered in behalf of his
That a parol contract of the kind set out in plaintiff’s petition Avill be enforced where the making of the contract is sustained by clear and satisfactory proof is uoav so well settled in this state as to no longer require reference to our former decisions upon that point.
This brings us to the second point, aóz, : “Was the land OAA'ned by Peter A. Carlson at all times his family homestead, and not subject to his individual disposal?” Upon this branch of the case counsel for defendants rely upon Teske v. Dittberner, 70 Neb. 544, and Lichty v. Beale. 75 Neb. 770. We do not think either of the cases cited is a bar to a recovery in this suit. Lichty v. Beale is not in point. In the Dittberner case the oral agreement was that the son Carl was to remain upon the particular premises in controversy, pay the taxes, keep up the place and improve it, and provide a home, board, clothing and spending money for the said Frederick Teske and his wife so long as they should live. If either the said Frederick Teske or his wife should desire to leave the home to be provided by plaintiff, then they were to receive $100 each per year in lieu of the alxwe provisions relative to their support. In considering that contract, the court was of the opinion that it was governed by section 4, ch. 36, Comp. St, 1901, entitled “Homesteads.” The difference between
It will be seen, therefore, that this case does not come within the purview of section 4, supra, but that it is controlled by section 17, ch. 36, supra, which provides: “If the homestead was selected from the separate property of either husband or wife, it vests, on the death of the person from whose property it was selected, in the survivor for life, and afterwards in his or her heirs forever, subject to the power of the decedent to dispose of the same, except the life estate of the survivor, by will.” In the light of this statute, there can be no doubt but that, if Carlson, at the time he made the oral contract relied upon, had executed his will, devising to plaintiff all of the estate, real and personal, of which he might die seized, subject to the life estate of his wife, the will would have been valid, and could not have been assailed by any one after his death. If he could have lawfully made a will thus disposing of his property, then he could lawfully contract to make such a will, and his heirs would have no more standing in court to plead the statute as to homesteads as a defense to an action to enforce the contract than they would have to plead the same statute if the suit were based upon such a will. By the parol contract, which we have already held is established by clear and satisfactory proof, Mr. Carlson did not attempt to convey or encumber his homestead, or to defeat his wife of her life estate as his surviving spouse, if she became such. He simply agreed to do that which the section of our statutes above
The judgment of the district court is therefore reversed and the cause remanded, with directions to enter a decree quieting plaintiff’s title in and to the lands in controversy, subject only to- the debts, if any, of Peter A. Carlson and Eva Charlotta Carlson, and the costs of administration; the costs of the suit to be taxed against the defendants Ida Sofia Ahlen and Carl W. Carlson.
Reversed.