8 Neb. 363 | Neb. | 1879
On the fourth day of August, 1874, the plaintiff entered into a contract with the defendant to give a bond for a deed to the defendant for the following described real estate, to-wit: The east half of south-east quarter and east half of north-east quarter of section 22, town 16, range 1, in the county of Polk and state of Nebraska, “and the party of the first part (the plaintiff) also agrees to give to the party of the second part a good and sufficient warranty deed to the above described tract of land when the party of the second part shall have fully complied with his undertakings and covenants, hereinafter mentioned, upon his part. The party of the first part also further agrees to relinquish his timber claim on the following described land, viz: north-west quarter of north-east quarter of section 22, town 16, range 1, in the aforesaid county and state, unto the party of the second part. The party of the first part also agrees to let all his household and kitchen furniture, and all nursery stock on said place, and four head of cattle, and one lumber wagon, and all farming utensils on said place go with said place to the party of
In May, 1876, the plaintiff filed a petition in the district court of Polk county, praying: “ That the said deed may be delivered up and canceled, and held for nought,” and for general relief. The petition alleges that said deed now appears of record in the office of the register of deeds of said county: “And the said defendant hath ever since failed and refused to execute said deed to said plaintiff hereinbefore referred to, and hath ever since failed and refused to execute and deliver said mortgage to this plaintiff, though requested so to do, and hath wholly failed and refused to keep and perform the agreements by him to be kept and performed.”
On the trial of the case in the court below, a decree was rendered canceling and setting aside the deed in question. The defendant appeals to this court.
It appears from the bill of exceptions that the plaintiff, to maintain the issues on his part, introduced in evidence the pleadings and a decree in a cause between the same parties upon this contract in the circuit court of Montgomery county, Iowa. Two actions were instituted by the plaintiff against the defendant in that
On the tenth day of February, 1877, the plaintiff filed in the office of the clerk of the circuit court of Montgomery county a waiver of a part of the decree as follows: * * “ To-wit.: $300.00 June 1,1875; $600.00 December 1, 1875; and the interest due on said payments, on all interest on said payments mentioned in said decree up to August 4, 1875, for the reason that plaintiff has obtained judgments against the defendant
That a deed takes effect only from the time of its delivery is too well settled to need the citation of authorities; but delivery may be proved by a variety of circumstances, and the possession of the deed by the grantee, in the absence of opposing circumstances, is prima fade evidence of delivery, and throws the burden of proof on him who disputes this presumption. How stand the facts in this case ? The defendant testifies that the deed was delivered to him without qualification or condition. The petition alleges that the defendant has failed and refused to execute the mortgage to the plaintiff although requested to do so. By the waiver filed by the plaintiff in the circuit court of Montgomery county, Iowa, it appears that prior to the tenth day of February, 1877, the plaintiff had recovered judgments against the defendant for about one-half of the sums claimed to be due, and that therefore he waived including the sums in the mortgage. It is also shown that at the time Cooper delivered the deed in question to the defendant, the plaintiff had two actions pending against the defendant for the specific performance of the contract in question, and that Cooper was the plaintiff’s attorney. It is evident that the delivery of the deed would materially strengthen his case. It is also shown that the plaintiff obtained a decree for the conveyance to him of the land in Montgomery county, Iowa.
In Porter v. Case, 4 Greenleaf 20, it was held that bringing an action to recover the purchase-money was evidence of the delivery of the deed. That, certainly, is a material circumstance in this case, and, taken in connection with the other testimony, shows that the intention was to deliver the deed to the defendant.
To offset this testimony we have the testimony of
The plaintiff contends that the findings of fact will not be disturbed where there is any evidence to sustain them. The rule is well settled in this court that the findings of a court, when substituted for a jury, are entitled to the same weight as the verdict of the latter, and a mere difference of opinion between the court and jury will not warrant the court in setting the verdict aside. But where the verdict or finding is clearly wrong it should be set aside. In no other way can the rights of parties be protected. And such has been the uniform holding in this court, from our organization as a state.
As to the decree of the circuit court of Montgomery county, Iowa, while it could not operate directly upon lands beyond the limits of that state, it fixed the relative rights of the parties under the contract, and the defendant having a deed'for the land in controversy, the plaintiff is entitled to a mortgage upon the same for the amount remaining due and unpaid; and as it
Decree accordingly.