67 Neb. 410 | Neb. | 1903
This is a suit in equity to enforce an alleged parol trust in certain real estate claimed by plaintiff to have been purchased by her son as a home for her. At the time the alleged arrangement was first entered into, the son, Joseph O. Butcher, one of the appellants, had just attained his majority and had received from his father’s estate, through his guardian, the sum of $2,175 in cash. The ap-pellee, his mother, who after his father’s death had married a second time, was then living at Maryville, Missouri. It appears that. Joseph had decided to give his mother a portion of the money which he had just received, and the two went together to the bank, where $500 of it was deposited to the appellee’s credit, Joseph remarking to his mother, according to the testimony, “That’s yours for a home.” The son’s relations with the stepfather, it seems, were not harmonious, and the former claims that the gift was made on condition that his mother should leave her husband. She denies any conditions, however, and other witnesses avIio were present say that no such terms were mentioned. Shortly after this the son left Missouri and came to Coleridge, in this state. It seems to be conceded that before leaving it was arranged between himself and his mother that he was to select a place for a home for her, to be purchased Avith the $500. She testifies that soon after his arrival at Coleridge he Avrote her stating that he had found a place that he thought would suit, and asking her to send $330 or $400. There was some other correspondence betAveen the parties, but none
Another objection to the decree is that the transaction is within the statute of frauds. As this is an express trust the statute is applicable here, and as the letters which passed between the parties were not produced there was no written evidence of the transaction. But the cestui que trust remitted her money on the strength of it, and afterward came from another state and took possession of the premises, and this, in the absence of writing, is a sufficient performance and execution of the trust to
Appellee and her husband were in the possession of the premises when appellant Meigs received his deed from the son, and also when appellant Waite made the loan and took his mortgage. The record shows that Meigs was her nearest neighbor, and that Waite’s agent who conducted the transaction for him was informed of appellee’s possession. Under the decisions of this court, therefore, these appellants were chargeable with notice, not only of the fact that appellee was in possession, but also' of her “right, title, and interest.” Uhl v. May, 5 Nebr., 157; Scharman v. Scharman, 38 Nebr., 39; Kahre v. Rundle, 38 Nebr., 315; Pleasants v. Blodgett, 39 Nebr., 741, 42 Am. St. Rep., 624.
Whether in a proper proceeding Joseph Butcher might not be entitled to recover any sum which he has invested in the property in excess of that received from his mother we do not here determine, because he prays for no such relief in his answer and there is no satisfactory evidence as to just what the property cost. '
Complaint is made concerning certain interlocutory rulings in reference to the pleadings, but these can not be considered in the absence of a petition in error. The questions of fact as to alleged admissions by appellee we consider settled by the adverse findings of the court. We therefore recommend that the decree be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.