97 Neb. 257 | Neb. | 1914
This is an action brought by plaintiff, Henry Owings, against the First National Bank of Johnson, Nebraska, to recover the sum of $5,129.67, the proceeds of the sale of a tract of land, described in the pleadings, but the description of which need not be stated here. The land was formerly owned by Lizzie E. Schmidt, who was later married to Henry Owings. They went to the state of Colorado, and after their marriage there located in the city of Sterling, in that state. Mrs. Owings’ health failed, and it became apparent that she was in a precarious condition. On the 28th day of June, 1911, Mrs. Owings executed a warranty deed to her husband, conveying the land in question to him, and placed it in a trunk in the house, and kept it until the 2d day of December, of the same year. At that time it was apparent that she could not recover, and that.,
Mrs. Owings left no child, nor father, nor mother, surviving her, but she had two brothers, Henry Schmidt and Charles/J. Schmidt, who demanded one-half of the money in the bank as the heirs of Mrs. Owings. The bank refused to pay the money to either claimant, when this action was brought against it by plaintiff for the whole amount. The bank filed the statutory affidavit to the effect that it held no claim on the money, but that it was.
The real, and indeed the only, question presented is: Was the deed from Mrs. Owings to plaintiff so delivered to him as to pass the title? The negotiations for the sale to Hahn had so far progressed that the contract of sale to the purchaser was signed on the day the deed was handed to plaintiff for deposit in the Sterling bank, but the contract and conveyance to Hahn were both signed by Mrs. and Mr. Owings. Considerable testimony was taken at the trial showing what occurred at the time the deed was sent to the Sterling bank, as well as declarations made to others by Mrs. O'wings after the execution of the deed and before the 2d day of December, the day it was sent to the hank. The written memorandum was made by Mrs. Owings while on her sickbed, and she never was “down town” after that date and prior to her death. She never made any effort to countermand those instructions, but, so far as is shown by the record, she was at- all times thereafter entirely pleased with what she had done. Had
Affirmed.