62 Neb. 153 | Neb. | 1901
Defendant Anderson appeals from a judgment adverse to him, rendered in the district court, wherein he was adjudged to pay the plaintiff the sum of $1,093, balance found due on a contract for the sale of real estate. The action was in its nature for the specific performance of an agreement for the sale of a tract of land entered into by Jacob Solt in his lifetime, and his wife, the appellee, the then owners of the land, on the one part and the appellant on the other. By the terms of the agreement, which is dated November 4, 1893, and pleaded in the petition, Anderson, the appellant, agreed to pay Solt, the owner of the land, $2,500, of which $50 was paid in cash and the balance to be paid the 1st day of March, 1894, less the amount of a certain mortgage then on the place. The vendor was to give peaceable possession of the premises on or before the 1st day of March, 1894, and to let Anderson do any work he wished to do on the place in the meantime; and Anderson agreed to forfeit all improvements and moneys paid if he failed to fulfill his part of the contract. The petition is assailed on the ground that it fails to state facts sufficient to constitute a cause of action. The petition alleges, in substance; that the deceased Solt was, in his lifetime, the owner of the land, and that the plaintiff was his wife and the administratrix of his estate; the execution of the mortgage thereon and of the written agreement with the defendant for the sale of the land, which is copied in the petition; the death of the owner and the names of those surviving him as his heirs at law; the payment of the further sum of $50 on the contract of sale March 6, 1894; that the deceased Solt, at the time of making the contract of sale, was the owner of the land and was ready and willing to convey the real estate to Anderson; that the deceased and plaintiff had complied with each and all the conditions in said contract on their part to be performed, and that since the death of Solt the plaintiff, both individually and as adminis
Some attention is given by appellant’s counsel, in his brief, to a discussion of alleged errors in the rulings of the trial court on the admission and rejection of evidence. The errors complained of can be reviewed properly only by proceeding in error. This being an appeal, we are to pass on the record as presented to us and therefrom determine the correctness of the judgment rendered in the trial court. We can not review the case on alleged errors in the admission and rejection of evidence when brought here on appeal. Te Poel v. Shutt, 57 Nebr., 592; Zimmerman v. Zimmerman, 59 Nebr., 80; Orr v. Bailey, 59 Nebr., 128.
It is also argued that the agreement to sell, being unacknowledged by the husband and wife and the land being a homestead, the contract is absolutely void and unenforceable. Whether the land is or was the homestead of the vendor we are unable to determine from the record before us, and are, therefore, precluded from considering the proposition thus advanced.
The reply alleges that it was the homestead of the vendor, but this, by force of the statute, is denied and there is no proof whatever on the subject. The allegation being
It is further contended that the plaintiff being without authority to execute a conveyance of the real estate at the time the suit was instituted, she has no cause of action against the defendant, and the action, for that reason, must fail. The argument is based upon the proposition that no authority is given by statute for an administrator of a deceased vendor to bring and prosecute an action for specific performance by a vendee under a contract for the sale of real estate. Proceedings of this character are directly-authorized by the provisions of section 323 et seq., chapter 23, Compiled Statutes, 1899, especially sections 335a, 335b and 335c of said chapter, being a part of the laws of 1889, chapter 60, entitled “An act providing for the conveyance of real estate by executors and administrators in certain cases.” The administratrix, under the authority thus given, is authorized to institute an action to compel specific performance of the contract and obtain authority to execute a conveyance of the real estate under the terms of the agreement executed by her intestate during his lifetime. The statute has been construed with reference to the right of the vendee to enforce specific performance after the death of the vendor, and the same reason for a similar construction in the case, of a deceased vendor exists and a like construction will be given in the case at bar. In re Reed, 19 Nebr., 397, 401, and citations therein made.
By the answer the defendant interposed as a defense the plea that there were certain apparent liens on the land
In the reply brief the appellant urges that in any event, in addition to the amount of the face of the mortgage being deducted from the purchase price named in the agreement, there should be further deductions made for taxes accrued and interest accumulated. We do not find in the record any evidence of any taxes which were a lien on the land at the time the purchase price should have been paid or accumulated interest due at such time. We are of the opinion that the respective rights of the parties under the agreement to sell should be fixed and determined as of the time when by its terms the vendee was to make final payment of the sum due in excess of the mortgage on the land, and the vendor convey the land and surrender to the purchaser the peaceable possession thereof. So far as the record discloses this would be the total amount agreed upon as the purchase price, less the $100 paid by the vendee and the face of the mortgage, which sums appear to have been deducted by the trial court in its findings of the amount then due the plaintiff and for which judgment was rendered.
From what has been said it follows that the judgment appealed from is in conformity with law and equity, sup
Affirmed.