34 Neb. 304 | Neb. | 1892
This action was commenced in the court below on the 30th day of January, 1888, by John C. Rakes to set aside two warranty deeds and a mortgage covering the northwest quarter of section 6, in township 10 north, of range 14 east, in Cass county, and to quiet the title to said land in the plaintiff. One of the deeds was executed on the 28th day of October, 1887, by John C. Rakes to the defendant Charles L. Blazer, and the other was made on the 13th day of January, 1888, by Charles L. Blazer and wife to the defendant Norman H. Brown. The mortgage was given by said Blazer and wife to the defendant Howard E. Schoeck on December 15, 1887. These instruments were duly recorded prior to the bringing of the suit.
In January, 1889, while the action was pending and undetermined, the plaintiff died, and the suit was revived in the name of Benjamin Albin, as administrator. After-wards the heirs of John C. Rakes, deceased, by order of the court, were permitted to intervene and prosecute the suit in their own names.
There was a trial to the court, with findings and a decree in favor of the heirs.
The undisputed testimony shows that John C. Rakes had been the owner of the land in dispute for more than twenty years prior to the making of the conveyance to Blazer. In 1887 an agreement of some kind was entered into between Rakes and Blazer, whereby the latter set up a saw mill upon lands adjoining the quarter section in controversy, which Rakes claimed to own, for the purpose of manufacturing the timber thereon into lumber. It appears that Rakes had only ah estate by the curtesy in the timber lands, and an action was commenced in the fall of 1887, in the district court of Cass county, by the owners of the legal title to the lands enjoining Rakes and Blazer from cutting the timber. Not long afterwards the 160 acres .in
“ I, the undersigned, do hereby agree to deed to John C. Rakes, at any time he wishes, the following described property, to-wit: The northwest quarter (■]-) of section six (6), township ten (10) north, of range fourteen (14); and I furthermore agree that the said John C. Rakes shall have full control of said lands until his death.
“ Witness my hand this 28th day of October, A. D. 1887. C. L. Blazer.
“In presence of
“Willett Pottenger.”
The deed was executed at the home of Rakes, a few miles from Plattsmouth. The deed and the writing copied above were prepared by Blazer beforehand, the deed being signed as a witness by one W. O. Shields before it was-presented to Rakes for execution. The only persons present when it was acknowledged were Rakes and Blazer and Mr. Pottenger, who, at Blazer’s request, went with him from Plattsmouth for the purpose of taking the acknowledgment of Mr. Rakes. What conversation took place when the deed was executed does not appear. But two of the persons then present are now living, Blazer and Pottenger, and although both were witnesses on the trial, they failed to state a single word that was spoken while they were at Mr. Rakes’s house. Mr. Pottenger, in his testimony, does say that no consideration was paid by Blazer at the time the deed was executed and delivered, and this is not disputed by any other evidence. There is no pretense that anything was subquently paid for the land, but it is contended by appellants that the consideration had been previously received, by Mr. Rakes. There is in the bill of exceptions some testimony, if accepted as true, which would warrant such an inference.
The appellant Blazer testified substantially that he purchased of Rakes, in September, 1887, all the timber then
Again, under section 329 of the Code of Civil Procedure, Blazer was not a competent witness to testify to transactions had with Rakes, the deceased. This section precludes a person having a direct legal interest in the result
We will next consider the case as between the appellees and the appellants Schoeck and Brown. Blazer gave Schoeck a mortgage on the property for $350, but whether there was any consideration for the same, the record fails to disclose; nor was any evidence introduced by Schoeck tending to show that he was an innocent mortgagee without notice of the rights of Rakes.
As to the deed from Blazer to Brown, the evidence shows that the consideration for the same was certain real estate in Omaha conveyed by Brown to Blazer, subject to the incumbrances thereon. The testimony introduced by appellees tends to show that the Omaha property was at the time mortgaged for almost its full value, while the testimony offered on behalf of appellant Brown is to the effect that the value of the property, above the incumbrances, equaled the value of the farm received in exchange. After a careful examination of the testimony we have reached the conclusion that the preponderance of the evidence is not against appellees on the question of value, nor can Brown successfully maintain that he is an innocent purchaser of the farm without notice. He was a stranger to Blazer, never having met him until the day preceding the exchange. Brown never saw the land until after the deed was executed and delivered. He made the trade upon an abstract of title of the farm produced by Blazer, after consulting with Odell
Counsel for appellant Brown, in the brief, call our attention to the testimony of one J. W. Foster, a real estate agent of Omaha, wherein he states that he visited the land in company with Blazer in December, 1877, with a view of trading some Iowa property for it, and while on the trip was introduced by Blazer to a man by the name of Rakes, of whom he inquired the value of the farm, who replied that he considered it worth $35 per acre, and that he had sold it to Blazer. From which it is claimed appellees are now estopped from asserting that Rakes had not parted with his title to the farm. We do not think such is the case. No estoppel is pleaded; nor is there any proof tending to show that the statement, which it is claimed Rakes made to Foster, was ever communicated to Brown. Hence it does not appear that the latter was in any way misled thereby. Moreover, the evidence is not conclusive that the person Foster was introduced to, and had the conversation with, was John C. Rakes.
Section 463 of the Code provides that “Upon the death of the plaintiff in an action it may be revived in the names of his representatives, to whom his right has passed. Where his right has passed to his personal representative, the revivor shall be in his name; where it has passed to his heirs or devisees, who could support the action if brought anew, the revivor may be in their names.”
To whom did the right of action pass ? There can be no doubt that on the death of John C. Rakes his lands descended immediately to his heirs, subject to the right of his administrator to the possession thereof, and to the rents and profits arising therefrom during the settlement of the estate, and subject further to the power of thé administrator to sell the real estate to pay the debts of the decedent in case the personal property is insufficient for that purpose. We suppose an action like this may be revived in the name of the personal representative of a deceased plaintiff, where the real estate is needed for the payment of debts against the estate. In the present case no such claim is set up in the petition of the administrator to revive the action. He therefore failed to show that he was entitled to have the case revived in his name. We are unable to see how the appellants were prejudiced by the revival in the name of the administrator, as no decree was rendered in his favor, but in favor of the heirs of John C. Rakes, deceased. The real estate having descended to the heirs at law, the right of John C. Rakes, on his death, passed to them and they had the legal right to have the action revived and continued in their names. It appears from the record that the heirs were permitted, without objection, to file a petition and prosecute the suit in their own names. Their admission as parties plaintiff, by order of the court, without complaint from any one, was, in effect, a revivor of the action in the names of the heirs by consent of parties. No
Affirmed.