62 Neb. 197 | Neb. | 1901
In the year 1887, C. F. Goodman, with others, signed an agreement providing that the subscribers should pay the
“Articles of agreement made this 30th day of December in the year of our Lord one thousand eight hundred and eighty-seven, between C. F. Goodman and Emma Goodman, party of the first part, and the Nebraska Christian Educational Board (when incorporated), party of the second part, witnesseth: That said party of the first part hereby covenants and agrees that if the party of the second part shall first perform the covenants hereinafter mentioned on their part to be made and performed, the said party of the first part will convey and assure to the party of the second part in fee simple clear of all encumbrances whatever, by good and sufficient warranty deed, the following lot, piece or parcel of ground, viz.: Ten acres in the N. E. ¼ of the N. W. ¼ section 21, town. 10, range 7 east, 6th P. M., being every fourth block in said forty acres; said parcel of ground to be conveyed on or before the first day of May, 1888, or as soon as I can obtain a release from the parties holding mortgages, and this agreement to take the place of the one previously signed by me agreeing to donate ten acres for the benefit of parties locating a college in that neighborhood. And the party of the second part hereby.covenants and agrees to execute and place in trust a bond in the sum of $150,000 at issue of the -above deed
It appears the educational board referred to was organized February 14, 1888. No bond was ever given as provided in the agreement. The university was located as agreed, a building commenced within the time and finished in April, 1890, costing about $80,000. The. deed was not given. At the time of the agreement, the forty acres consisted of blocks numbered 59 and 60, 78 and 74, 75 and 76, and contained the north half of blocks numbered 91 and 92 in Bethany Heights Addition.to Lincoln, and all belonged to Goodman. In 1889, the board procured appointment of appraisers under the statute and had their property appraised, including subscriptions and donations, but it did not include this land or contract. C. R. Van Duyn, treasurer, says that Goodman told him that when he could get a blanket mortgage off this land he would deed. Yan Duyn thinks this was in 1893. No other claim of right by the board appears; and in 1892 Goodman and wife vacated the plat of Bethany Heights as to this land. October 14, 1893, the plaintiff loan company filed a judgment in Lancaster county against Goodman for $1,099.51 and $15.48
January 11, 1896, plaintiff commenced suit to set aside an old mortgage and have the property sold on its judgment; making the First National Bank and Goodman’s widow and executrix, he having died in 1895, his children, the educational board, and one Robert S. Dill parties defendant, together with a mortgagee whose lien was alleged to have been satisfied. It asked that all parties be compelled to show their rights and priorities and a sale had to satisfy its judgment. Dill answered, setting out the facts as to the educational board’s claim and an assignment January 26, 1896, of that claim to himself and asked specific performance as to an undivided one-fourth of the forty acres. The First National Bank answered, denying any right in Dill, admitting plaintiff’s lien as first and asking to foreclose its mortgage for $4,900.49 and interest.
Goodman’s executrix, and, after her resignation pending the suit, his administrator, denies that the educational board ever perfected its claim; says that it was not in existence when the agreement was made, and denies all rights of Dill under it, and pleads some payments on the judgment and the mortgage of the bank. These payments were subsequently admitted, and the only question here is as to Dill’s claim for specific performance and its priority over the plaintiff’s judgment and the bank’s mortgage. The trial court found Dill entitled to a conveyance of an undivided one-fourth of the forty acres, and his rights prior to both the judgment and the mortgage. From this part of the decree is the appeal.
Appellants urge (1) that the alleged contract is no contract, because never executed by the second party, though
As to the first point, the terms of the contract bear out the appellants’ contention. It would be difficult to draw an instrument more strictly bilateral in its form. However, every instrument must be interpreted by its surroundings and connections; and in considering the facts surrounding this contract we are compelled to conclude that this was an agreement for a conditional subscription, an offer to the other parties when they should be incorporated, which looked to their incorporation and undertook to carry out this agreement when they should comply Avith its conditions. Such an offer, of course, could be withdrawn at any time before acceptance; and if no action toAvards organizing the corporation was taken Avithin a reasonable time, it would be deemed withdrawn. If, however, Avithin a reasonable time, the incorporation was effected and the conditions performed before withdraAval of the offer, it would seem to make .a binding obligation. Counsel for appellants make no claim for the application of the well-knoAvn doctrine that specific performance of an agreement for a gift will not be enforced, and that this remedy avails only upon contracts for a valuable consideration. Pomeroy, Equity Jurisprudence, sec. 1405. Probably they thought the location of the university and erecting of its buildings sufficient to take the case out of the rule by establishing a subsequent valuable consideration and to bring this gift under the exception made for one who has expended money or changed his position in expectation of the promised gift. Darke v. Smith, 45 Pac. Rep. [Utah], 1006. If so, hoAvever, it must be presumed from the fact of building at the agreed place. The record fails to disclose any other proof that this agreement was any part of the inducement to either location or building.
The incorporation was effected within forty days after
The defective description is also objected to. When this contract was made the land Avas platted. It remained so until tAvo years after the right of the educational board became, as its assignee claims, perfect. The plat is still in existence and can be applied to the ground. Its vacation took away no rights of the board in any specific land and gave it none in any other. If it ever became entitled to a conveyance of anything, it was some specific ten acres obtainable by taking every fourth block in the forty acres described. The vacation of the streets and alleys Avould have no effect except on the public easement: The ground Avould still be there and the plat in the files, both just as certain and as recognizable as before. The situation of these blocks and the impossibility- of telling from this description what was intended to be covered by it has been indicated. It seems to be clear that an undivided interest Avas not to be conveyed, for a division is proAided for. The court, hoAvever, can not make the division, for the point of commencement to count off each fourth block is not indicated. The contract must be such as can be specifically enforced by the decree of the court. So long as the parties left it to be determined by themselves where the beginning-should be made, the court can not begin for them. 3 Pomeroy, Equity Jurisprudence, secs. 1404, 1405; Camden & A. R. Co. v. Stewart, 18 N. J. Eq., 489. In Nippalt v. Kammon, 39 Minn., 372, a description, like the one we have, Avas found too vague for specific enforcement. In that case the defendant agreed to sell “5 acres, lot 3, sec. 23, town. 28, range 23.” The court says it has no means of knowing Avhich five acres was intended. No more have we as to Avhich ten of the forty, all of which Avas owned.by .Good
It is therefore recommended that the decree be reversed as to defendant, Robert S. Dill, and his cross-bill dismissed, and affirmed as to the findings and decree for plaintiff, the Omaha Loan & Trust Company, and defendant First National Bank of Omaha.
For the above reasons the findings and decree in favor of cross-petitioner, Robert S. Dill, are reversed and his cross-bill dismissed; the decree in other respects is affirmed.
Judgment accordingly.