37 N.W.2d 199 | Neb. | 1949
In this action plaintiff seeks to establish by parol evidence an alleged agreement of the defendants to hold real estate as a constructive trust. The trial court found
These facts appear in the record without serious dispute.
Plaintiff is an elderly widow, and at the time this action was brought in 1947 was 72 years of age. The defendants George G. and Bernice I. Hofmann are husband and wife. The defendant Bernice I. Hofmann is plaintiff’s stepdaughter, the plaintiff and Bernice’s father having married when defendant Bernice was 9 years of age. The relationship between plaintiff and defendants was friendly until 1941.
In 1936, plaintiff was the owner of a lot in the city of Omaha which had on it a building described as a combined store and residence. It was renting for $55 a month. Its value was from $4,000 to $4,500. The property was mortgaged and there were due upon the mortgage, principal and several years’ delinquent interest, totaling about $3,570. There, were also delinquent taxes in ithe amount of approximately $800. Both taxes and mortgage were subject to foreclosure, and that action was threatened, including a suggestion of a receivership.
The matter was discussed between plaintiff and defendants. Defendant George G. Hofmann talked the matter over with the mortgage holders. They agreed to discount the mortgage indebtedness, to accept a new mortgage from defendants for $3,000 and a cash payment which, when made, was for $208.25, or a total of $3,208.25.
On February 10, 1936, the parties met in an attorney’s office in Omaha. The attorney had previously represented both plaintiff and defendants in separate matters. On that day plaintiff executed a warranty deed to the premises conveying the same to the defendants, subject to the mortgage, outstanding tax sale certificate, and delinquent taxes beginning with the year 1931. . On that day the parties also executed what is termed an option, wherein the defendants granted to plaintiff and to Ruth G. Parrott, stepdaughter, the right to purchase the
Likewise on February 10, 1936, defendants paid to the mortgage holders the amount of $208.25, and executed their promissory note for $3,000 secured by a mortgage on the property involved. The note bore 5 percent interest and was payable at the rate of $50 a month until principal and interest were paid.
Thereafter the defendants collected the rent upon the property, paid the delinquent and current taxes and insurance, and the new mortgage indebtedness.
In October 1936 or 1937, the year being in dispute between plaintiff and her witness, plaintiff approached a
In 1938, the rent on the property was reduced to $50 a month.
In late 1941, a dispute arose between plaintiff and defendants over amounts which defendants claimed plaintiff owed them for advances of money and items in converting other property into rental apartments. Cordial relations then ceased. Defendants requested a mortgage for the amounts involved, which plaintiff refused to give, stating that defendants had beaten her out of the property here involved. This dispute resulted in litigation in 1941 in an action by defendants against plaintiff for the recovery of money. By answer filed in that action on January 5, 1943, plaintiff admitted owing defendant George G. Hofmann the sum of $570. On April 15, 1943, plaintiff tendered to defendant George G. Hofmann the, sum of $20 to apply on that indebtedness. An amended petition was filed in that action on June 7, 1943, and an amended answer and counterclaim was filed on July 2, 1943. By the counterclaim in that action plaintiff undertook to secure an accounting and recovery of the property here involved. The counterclaim was stricken upon motion.
In October 1945, defendants sold the property here involved for $5,500, the sale netting them $5,239.26. Plaintiff learned of the sale in the spring of 1946. This action was commenced in May 1947.
Plaintiff alleged 'that in 1936, when facing financial difficulties with reference to this property, defendants expressed a desire to help her; that defendants were to advance her approximately $200 with which to pay the delinquent installments on the mortgage indebtedness, were to collect the rents, make payments on the mortgage then aggregating approximately $3,000, make repairs, pay taxes and insurance, and to advance such sums in
Plaintiff prayed for a decree that the defendants held the property in trust for her, for an accounting of rents and the proceeds of the sale, and for judgment for the amount found due.
Defendants pleaded that the deed and option represented the entire contract and that the action was barred by the statute of limitations.
The trial court found generally for the defendants and dismissed the action. From that decree plaintiff appeals.
We find some difficulty in determining from the petition whether plaintiff relies upon a parol agreement prior to the deed and option, or a subsequent parol agreement, or upon both of said alleged agreements. Plaintiff here contends that defendants were constructive trustees. It is noted that the prior parol agreement pleaded is substantially that contained in the option, except as to the two-year provision contained in paragraph 5 above set out.
Testifying over objection as to the prior agreement,
As to the subsequent parol agreement, plaintiff testified that in 1937, she told defendant George G. Hofmann that she could get the money to pay the indebtedness and that he told her “* * * ‘Oh, just let it ride, I will never take the place away from you; just let it ride. What do you want to pay any more commission for’ ” and that she relied upon that statement. Defendant denies that conversation. So, as to that, there is a direct conflict. However, it is not disputed that in 1943, seven years after the conveyance to defendants and two years after she testified she told defendants they had beaten her out of this property, plaintiff by letter tendered the defendants $20 on the admitted $570 debt and promised to make like payments monthly until the total of the $570 had been paid.
Under these circumstances the trial court resolved the issues of fact against the plaintiff.
A high degree of proof is required in order to establish a trust by parol evidence. The proof must be clear, convincing, and satisfactory. Holbein v. Holbein, 149 Neb. 281, 30 N. W. 2d 899; McCormick v. McCormick, 150
“Actions in equity, on appeal to this court, are triable de novo in conformity with section 25-1925, R. S. 1943, subject, however, to the condition that when the evidence on material questions of fact is in irreconcilable conflict this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of the facts rather than the opposite.” O’Brien v. Fricke, 148 Neb. 369, 27 N. W. 2d 403.
It is our conclusion that the evidence of the plaintiff fails to meet the test as to quality required under the above rules as to the essential fact questions involved.
The judgment of the district court is affirmed.
Affirmed.