74 Neb. 411 | Neb. | 1905
Tlie original petition in this case was filed on May 24, 1898, in the district court for Douglas county, praying for
It is next Urged that the court erred in admitting in evidence the note executed by Mrs. Linton to the mortgagee, because such note does not appear to be stamped, as required by the revenue laws of England, where the note was executed, and that, consequently, the mortgage which secured the note was void. In the first place, as the trial was to the court and not to a jury, it -was not error to admit the note in evidence in the first instance, even if unstamped. The only error that could be predicated would be the action of the trial court in rendering judgment on such improper testimony. The court, after admitting the note, refused to render judgment on it, and only found for
The sufficiency of the'evidence to sustain the decree is challenged in both the error and the appellate proceedings. The facts underlying the controversy are that in 1878 Phoebe R. E. E. Finley, a prospective American heiress, then a minor of the age of 16 years, whose father resided in the state of Pennsylvania, was married in Paris, France, by the English consul to Adolphus Frederick Linton of London, England, who appears to have been a profligate bankrupt. Before the marriage the following antenuptial agreement was entered into by the intended husband and wife: “This is an agreement made on the 9th day of December, Anno Domini 1878, between Adolphus Frederick Linton, Esq., bachelor, of 18 Gilbert St., Grosvenor Square, Middlesex, on the one part, and Rebecca Elizabeth Phoebe Elwina Finley, on the other part, in pursuance of a marriage which is proposed to take place between said parties. It is agreed that all the moneys and property that the said intended wife may become or is now in possession of or that she may at any future time become entitled to, shall be free from the debts, control and engagements of the said intended husband, and settled upon herself for her sole and separate use, and be divided amongst the children of the said intended marriage in such shares as the said intended hus
It is now contended by counsel for the appellants and plaintiffs in error that the institution of this suit was a ratification of the antenuptial agreement entered into while Mrs. Linton was a minor. If we should regard the institution of the suit as a ratification of the contract, we Avould be compelled likewise to regard the dismissal of the cause by her as a revocation. The true rule, hovsever, is that the dismissal of a bill without prejudice does not conclude the parties thereto, and they are at liberty to
The contention of the plaintiffs in error is that the minor defendants take the fee of the land in dispute as purchasers under this antenuptial settlement, and that the mortgage was taken by the mortgagee with full knowledge of their rights under this agreement. “The distinction between trusts executed and executory is this: a trust executed is where the party has given complete directions for settling his estate, with perfect limitations; an ex-ecutory trust, where the directions are incomplete, and are rather minutes, or instructions for-the settlement.” Neves v. Scott, 9 How. (U. S.) 196, 211; McCartney v. Ridgway, 160 Ill. 129. The action anticipated by this agreement for carrying it into effect was the execution of a formal deed for' that purpose. This was never made until T901, or five years after the mortgage had been executed. At the time the agreement was entered into, Mrs. Linton had not yet come into possession of her estate, and
But it is contended by counsel for the Lintons that the contract, the mortgage and the note are all governed by the laws of Great Britain, the place where the contract was entered into, and not by the laws of the state of Nebraska, the situs of the real estate. It is said authoritatively by the learned Judge Story, in his Conflict of Laws, sec. 428, that the law of the situs shall exclusively govern in regard to all rights, interests and titles in and to immovable property. See also Richardson v. De Giverville, 107 Mo. 422, 17 S. W. 974. It follows therefore that the execution of the mortgage and the contract under which the minors claim title to the real estate must be determined by the laws of this state, and not by the laws of England. As already set forth in the opinion, the mortgage itself was a Nebraska form, and was executed in conformity with our statutes. But even if the acknowledgment had been informal as between the parties, the mortgage would have been good, as held by this court in Linton v. Cooper, 53 Neb. 400, and in Morris v. Linton, 61 Neb. 537.
We therefore conclude that the antenuptial agreement relied upon is no sufficient defense against plaintiff’s mortgage, and recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.