60 Neb. 600 | Neb. | 1900
The present controversy arises over the title to certain real estate claimed by appellants, as heirs, and by the appellee, as grantee of one Calvin Pinkham, now deceased. The validity of the instrument under which appellee claims title is challenged ón the ground of fraud and undue means in its procurement, and it is also averred in the petition that it was executed in anticipation of the death of the grantor as a final disposition of his property, and that, after recovery, he sought to revoke and cancel the same, but was prevented from so doing through fear of bodily harm at the hands of the grantee. The case has once been before this court, the opinion then rendered being found in Pinkham v. Pinkham, 55 Nebr., 729. It is there held that the instrument under which appellee’s right to the land is to be determined, although in form a deed, which by its terms was to operate only after the death of the grantor, was testamentary in character, and passed no present estate in the premises therein described. The decree of the trial court, quieting title in appellee, was reversed, and the cause remanded for further proceedings, with directions to proceed according to law. After tbe case wag remanded, appellee
It is very true that a' decision by the appellate court upon any question presented to it in reviewing the proceedings of the trial court ordinarily will not be re-examined, and becomes the law of the case, binding upon the court and the parties in the further litigation of the case, from the consequences of which the court can not depart, nor the parties relieve themselves. Omaha Life Ass’n v. Kettenbach, 55 Nebr., 330; O’Donohue v. Hendrix, 17 Nebr., 287; Hiatt v. Brooks, 17 Nebr., 33. It is not, however, we assume, in the present case, a question as to what the rule is, so much as to whether it is applicable to the point under consideration. On the first appeal it was determined that the deed, in the form in wMch it was written, was testamentary in character, and passed no present estate in the land. That question has been adjudicated, and will not be, nor is there any request to have it, further examined into or overturned.
Can it be said that the question as to the right of ap-
It is urged that, the case being remanded “for further proceedings,” it should be proceeded with only with a view of determining the rights of the parties litigant under the instrument as construed in the opinion, and that it was error to permit an amendment of the pleadings and relitigate the issues as amended. Our conception of the case is that it was remanded generally, and without directions, to be proceeded with in any particular manner. The direction was “to proceed according to law.” Had there been directions to proceed in a particular manner therein specified, doubtless no further proceedings inconsistent with the directions in the mandate could be permitted. The appellee and all parties to the action would be precluded from pursuing a different course than that pointed out, and the only remedy would have been by a motion for a rehearing and modification of the opinion. No special directions being given, the parties, we think, were justified in regarding, as they did,
It is urged that for several reasons the instrument is not reformable, and that the amended answer and the proof is insufficient to warrant reformation. It is said, the instrument, being testamentary in character, can not be reformed. For the purpose of considering this point, the instrument is not testamentary. A correction of the alleged mistake is not asked upon the theory that it is testamentary. It is contended that it is an entirely different instrument, one that may be reformed; and the fact that a mistake, if there is one, throws it into the class of testamentary instruments, will not prevent the correction of the error, thereby removing it from the class to which it does not belong. It is the instrument, as corrected, which determines the applicability of the rule which shall govern in its reformation. Neither do we regard it as a voluntary instrument, requiring the application to it of the rules governing errors and mistakes in the execution of such instruments. It was not voluntary in the sense that the property was a gift to the appellee.
The mistake was one of the conveyancer. The grantor relied upon him to express in the deed his reservation of a life estate in the property conveyed. Whether the mistake can be clearly defined as one of fact or of law, is not so important. It possibly partakes of some of the elements of both. If it failed to correctly express the intention of the parties, to the effect that a life estate rkould be reserved to the grantor, and by the use of inapt words on the part of the notary the instrument was made testamentary in character, we fail to perceive any valid objection to its correction. The fact that the mistake in the use of the wrong words, if there was a mistake, rendered the instrument of a different character than the one intended seems to be immaterial. A mistake would have occurred had other inapt words been used, putting it in another class of instruments, or, perhaps, using words which failed to constitute a legal reservation of a life estate to the grantor in the premises conveyed. In such case, who would doubt the right of the parties to reform the instrument to conform to the actual intention of the parties and give to the grantor a life estate therein, according to the terms of the agreement? Whether the mistake be one of law or fact, or both, it seems to be a doctrine well supported by the authorities, that, if the instrument fails to correctly express the intention of the parties, equity will intervene and grant to the. parties injured such relief as they may be entitled to. Upon this subject, Shaw, C. J., in Canedy v. Marcy, 13 Gray [Mass.], 373, says: “It is the mistake of the parties to the deed which we are to inquire into; and if they were misled by a misplaced confidence in the skill of the scrivener, it
It is urged that the statute of limitations operates as a barrier to prevent the appellee from reforming the instrument under which he claims by correction of the al
In the instrument under which appellee claims title to the land therein described is found the following provision : “The further and additional consideration of this conveyance is, that the said John H. Pinkham shall pay to Ella [Lilly] P. Riddill, my great grand daughter, fifty dollars per annum for ten years from the taking effect of this deed.” It is urged that it was error to quiet title to the property in the appellee as against the said Lilly P. Riddill; that, under the provisions quoted, she held an
The cause will be remanded, with directions to the trial court to find the amount owing to the said Lilly P. Riddill under the terms of the deed, and award her a lien on the premises therefor. In all other respects the decree is affirmed.
Judgment accordingly.