40 Neb. 242 | Neb. | 1894
On the 9 th day of June, 1890, W. H. H. Pillsbury and Alexander & Marsh entered into a written agreement, in and by the terms of which Alexander & Marsh agreed to purchase of Pillsbury lots 3 and 4, in block 18, of Arnold ■& Abbott’s addition to Grand Island. They also agreed to pay, and did pay, Pillsbury on that day $400 in cash, ■and agreed to pay him on the 9th day of July, 1890, the further sum of $1,000, and assumed the payment of a mortgage of $1,000 already on said real estate. Pillsbury ■on his part agreed, when Alexander & Marsh had complied with their promises, to convey to them, by good title, the above described real estate. Alexander & Marsh having failed to perform their part of the written agreement, Pillsbury brought this suit in equity in the district court of Hall county, alleging in his petition the making and the terms, as above stated, of the written agreement of June 9, 1890; that he had complied with his part of the agreement; that he was ready aud willing to convey to Alexander & Marsh a good title to said premises; that
1. It is as well to say in the beginning that the charge made by the appellants, that they were induced to enter into the contract with Pillsbury by reason of false and fraudulent representations made by him, was not proved on the trial. Indeed, there was no effort made to prove it. The appellants relied in the court below, and rely here, upon the one contention to defeat the claims of Pillsbury, viz., that Pillsbury, at the date of the contract, June 9, 1890, did not have a good and legal title to the premises which he agreed to convey. This contention of the appellants is sought to be established by three alleged defects in Pillsbury’s title as follows, viz., that there had not beep any legal dedication of the streets to the public in Arnold & Abbott’s addition to Grand Island, in that the plat pf said addition contained no statement to the effect that the addition had been platted with the free consent and in accordance wi.h the desires of the owners; and such plat was
■ The evidence shows that in July, 1870, Abbott & Arnold held a contract from the state of Nebraska for the conveyance to them of the northeast quarter of the southwest quarter of section 16, in township 11 north, and range 9 west of the 6th P. M., this land having been sold to them by the state authorities in pursuance of the provisions of the statute for the sale and leasing of the public school lands of the state. In this month Arnold & Abbott caused this piece of land to be surveyed and platted into lots, blocks, and streets, and designated as “Arnold & Abbott’s Addition to Grand Island.” ■ This plat they caused to be filed in the office of the recorder of deeds of Hall county. This plat neither Arnold nor Abbott signed or acknowlédged in any manner whatever. The only certificate on the plat is that of the surveyor. The evidence further Shows that for about twenty years prior to the bringing of this suit the public had been in the open, exclusive, and notorious possession of the streets designated on said plat; that Arnold & Abbott and others had sold and conveyed parts of said addition described by lots and blocks in the addition.
Now, while the statute, section 105, chapter 14, Compiled Statutes of 1893, requires that every such plat as this shall have thereon the certificate of the owners certifying that the plat has been made with their consent and in accordance with their desires, and shall be given the same as a deed, the failure of Arnold & Abbott to comply with these provisions of the statute did not make the platting of Arnold & Abbott’s addition void; and though there has been no statutory dedication to the public by them of the streets marked upon said plat, still their platting this addition, filing the plat in the recorder’s office and leaving spaces for streets, and their sale and conveyance of part of the property in this addition described.as lots and blocks
2. The next contention of counsel for appellants is that in order to enable Pillsbury to maintain this action he must show a true and correct title in fee-simple to the property in question from the public records of Hall county. We think this contention of counsel is too broad; but, assuming, for the purpose of this opinion, that counsel is correct, we proceed to inquire what the public records of Hall county disclosed as to the title of Pillsbury to this property on the 6th of June, 1890.
Prom the evidence in the record before us it appears that on the 6th day of June, 1870, Arnold & Abbott purchased from the state of Nebraska the forty acres of land now constituting Arnold & Abbott’s addition to Grand Island, and that the state issued to them a contract agreeing to convey the land to them, or their assigns, on payment to the state of the purchase price mentioned in said contract; that in the month of July, 1870, as already stated, Arnold & Abbott caused the land which they had purchased from the state to be surveyed and platted as Arnold & Abbott’s addition to Grand Island; that on the ,17th day of October, 1870, Arnold & Abbott conveyed by an absolute warranty deed the property in controversy in this suit to one Patrick D. McCarthy; that subsequently, on the 9th day of December, 1887, McCarthy,, by a war
Counsel for appellants say that their clients were entitled to a marketable title, an undoubted title, and a title not likely to be exposed to litigation. All this may be conceded, and the answer is that there has never been a lime,, since the clients of counsel entered into the contract with Pillsbury, but that Pillsbury could have given such a title. The fact that a loan company, or an abstracter, was not
3. Another objection urged by the appellants to Pillsbury’s title is that it does not appear whether Arnold or Abbott, either or both of them, were married or single men at the time of their conveyance of the property in question to McCarthy. The answer to this is that, by reasoii of the conveyances and statutes already quoted, Pillsbury had of record the legal title to this property, even if Arnold & Abbott had both been married men at the date of their conveyance to McCarthy; and another answer is that the undisputed evidence in the record shows that at the time they made such conveyance to McCarthy they were both unmarried.
4. There is, however, another reason why this decree cannot be reversed. As before stated, the first contract between the parties hereto was entered into on the 9th of June, 1890. It appears that soon after that the appellants made application to some eastern loan company for a loan with which to take up the mortgage on the property which the appellants had assumed. This loan company made some objections to the title, and the appellants, in their testimony in this case, say that some time about the 1st of July, 1890, they went to Pillsbury and made to him the objections to the title, which have been litigated in this suit. Afterwards, on the 3d of November, 1890, the parties to this suit, by their solemn agreement in writing, extended the time of the performance of the things to be done by the original contract until June 9, 1891. At this time appellants paid $50, the interest due on the mortgage which they had assumed. They afterwards took possession of the property in controversy and made some slight im
In McAusland v. Pundt, 1 Neb., 211, Crounse, J., discussing this principle, at page 252, says: “To.my mind all these circumstances are evidence that McAusland well knew the fact that Jones’ title was in litigation and that he had bargained and acted with reference to it.” The syllabus of the case declares that specific performance of a contract for the sale of real estate would not be decreed to a vendee when he had been guilty of gross negligence in the performance of his stipulations; and that the neglect of the vendee to perform his stipulations would not be excused on the ground that the title was involved in .a dispute existing when the contract for the purchase was made.
In Winne v. Reynolds, 6 Paige Ch. [N. Y.], 407, it is said: “Where there are trifling incumbrances upon the title which were known to the vendee at the time he contracted to purchase, a specific performance will be decreed without compensation, although by a mistake of the scrivener they were not excepted in the written contract of sale.” In that case the chancellor remarked: “ There is no doubt, however, from the testimony that the defendant knew of the existence of this covenant in the lease at the time he contracted to purchase the land; and he either expected to take the title subject to the conditions of the patroon’s conveyance, or he intended to commit,a fraud upon the complainant by insisting upon this technical objection to the title afterwards.” (See also Ten Broeck v. Livingston, 1 Johns. Ch. [N. Y.], 357.)
.. In the case at bar the appellants knew, when they entered into the contract of November 3, for a modification
This shows the legal title to the property in question was perfect in Pillsbury. The learned district court was right and the decree appealed from is
Affirmed.
