48 Neb. 266 | Neb. | 1896
The original plaintiff in this canse, John D. Thomas, and one of the defendants, John P. Thomas, have died
The parties have entitled the case as here an appeal, and have treated it as such in the briefs filed. It has been held that where the party bringing a case to this court files a petition in error, he will be presumed to have elected to proceed by error and not by appeal (Beatrice Paper Co. v. Beloit Iron Works, 46 Neb., 900; Monroe v. Reid, 46 Neb., 316; Woodard v. Baird, 43 Neb., 310); but it will make no difference in this case, as the points discussed all come under the questions of the sufficiency of the evidence to sustain the findings and the judgment., and what are the rules of law applicable to the facts as developed by the testimony during the trial and governing the disposition of the cause, and did the trial judge rightly select and apply them.
It will be remembered that the plaintiff pleaded that it was because he feared a loss of his property, and, in an
Q. Now yon may tell the court what the circumstances were attending the execution of the deeds spoken of in the petition and the answer herein of this land, to which your attention has been called, to John P. Thomas, about the year 1884.
A. In the latter part of December, 1888, or else in January, 1884,1 had a little interest out at Fremont and I went out there and in the evening I took a train and went to Blair. It was a winter evening and pretty dark. I had supper, and after supper I stepped out on the sidewalk, and, as I usually go, I had both hands in my pockets. I took six or seven steps from the door when I stepped on the sidewalk, and I stepped in a hole with the left foot and didn’t reach no ground, and I fell against the edge of the planks with the fourth and fifth ribs, and it pretty nearly laid me out. I came down to Omaha here the second day after and I treated with three different doctors, and finally I went to the hospital and staid there some two weeks and I was spitting considerable blood, and for a long time when I went up steps I had to drag my left foot behind and when I went down steps I had to swing it forward. When I was in bed I had a hard time to turn over one way or the other, and at the time I didn’t know what would become of me. I had no friends and no relatives here except this nephew.
Q. You mean John P. Thomas?
A. Yes, and I called him and told him the conditions, and he said he would take care of anything I would put over in his name and would return it any time I would make a demand, and afterwards these papers were made out to that effect.
Whatever may have been the reasons of the plaintiff for so doing, on the 5th day of February, 1884, he conveyed by warranty deed to his nephew, not only the land
Q. Is it not a fact that you went into the office of Mr. Breen and told him to prepare a deed from John P. Thomas to yourself, and you gave him a description of the land that you wished to be included in the deed, including the “old homestead place,” as you call it, in Washington county, the lots on Cuming street and Eighteenth and Webster, and didn’t he prepare a deed for you at that time?
A. Is that all he prepared? Didn’t he put in ten acres up at the fort, too ?
Q. And Mr. Breen put into the deed a description of all the property that you gave him to include in the deed?
Q. And after the deed was prepared you had the defendant go with you up into Mr. Breen’s office and execute that deed, didn’t you?
A. I don’t know. I can’t tell yon.
Q. And he did sign and execute the deed before Mr. Breen, conveying all the property back except what is in controversy in this case?
A. The deed seems to be signed by him, yes. * * *
Q. And that transfer back to you was made in pursuance of what you have stated here, the arrangement for all the property?
A. Yes.
Q. At that time he was still on good terms with you,, was he not?
A. The best of terms.
Q. The relations between you and him were the same as before?
A. Yes, as good as ever.
Q. And he mademo objection to transferring that property back?
A. Just as good as ever.
Q. At the time that deed was made, could you have included all this other land without any objection from him at that time, if you had seen proper to do so?
A. Yes, I think I could.
Q. Was he making any objection at that time about transferring back any of this property?
A. Not any that I know of.
The nephew testified on this subject as follows:
A. He came to me in 1887 and asked me if I would deed the property back to him, and I said, “Yes, go ahead and have your papers made out.”
Q. After that did he inform you that the papers were made out and where they were?
A. Yes, sir. A day or two after that I met him on the street and he said, “I got them deeds made now.” I said, “All right.” He said they were up in Breen’s office. Says
Q. What did he mean by “homestead”?
A. That was the 160; he told me the 120 and 80. He said, “What I showed you in 1887.” He said, “You been pretty square with me and I don’t know what I do without you,” and I could keep that. We went to Mr. Breen’s office and I looked the deed over and signed it.
Q. Has he ever asked you for a deed of it since?
A. No, sir.
The plaintiff testified that there was a direct promise on the part of his nephew to reconvey the property whenever requested so to do; that there was nothing paid for the property. The nephew stated in his testimony that he did not pay anything for it. In the cross-examination of the plaintiff it appears:
Q. You say, then, that the only purpose you had in deeding to him this land, making him a warranty deed to it, was so he would have it in case you didn’t recover?
A. Yes, sir.
In the testimony of the young man he was asked and answered as follows:
Q. You may state if you had any conversation at the time of making the deed, and prior thereto, in relation to the making of it.
A. No, sir.
Q. You say that he just gave it to you?
A. I didn’t know that the deed was made to me until after it was done. I knew nothing about it until after I came up here. [Referring, evidently, to his coming from St. Louis to Omaha at or about the time of the making of the deeds.]
It was shown that the plaintiff, in another action between him and his nephew, had testified in regard to the transfer of the land as follows:
Q. You may state to the court whether you discussed these litigations you had or was having with him.
A. Yes, when I lost the land and had trouble with the
We have thought best to set forth this much of the testimony in order that its general drift and import might be understood. It is claimed by counsel for plaintiff that “there was no delivery of the deed made in 1884 by plaintiff to his nephew. It was a trust deed, if anything.” The question of a delivery of a deed was not of the litigated points in the case. The transaction of 1884 was in all respects, both in the pleading and in the evidence of plaintiff, treated and considered as a full and completed transfer and conveyance of the property to his nephew. It was at all times recognized as such by the plaintiff. Whether the deed of 1884 had ever been delivered by the plaintiff to his nephew or not, or whether it had in one way or another, was not questioned. The deed was filed for record by someone and duly‘recorded, and the plaintiff avers and proves a full and complete transfer of the title and transfer of the property to his nephew, and no question was made of the delivery of the deed or any other act necessary as an element or part of such completed conveyance. The petition in this case alleged a conveyance of the property in controversy in trust for the grantor, arising out of a promise by the grantee to recon-vey to grantor, the promise being verbal, and sought to have a trust resting entirely in parol declared and enforced. It was within the statute of frauds as enacted by this state, and hence without the province of the court
But it is insisted that tbe grantee, in tbis case tbe nephew, bad recognized or admitted tbe trust by recon-veying a portion of tbe property, and that it is a fair deduction to be drawn from bis testimony that a promise to reconvey existed or bad been made. We cannot give tbe fact of the reconveyance of a portion of tbe property such force as is claimed for it by counsel. It may be said that it was probably a strong circumstance tending to establish tbe existence of a promise to reconvey, but not so conclusive as to be construed or held to be an admission of it, nor do we think bis testimony can be construed as an admission. Tbe point which counsel urged in tbis connection is that if tbe defendant admitted tbe agreement, that no reason then exists for not enforcing it, and tbe courts will give it force notwithstanding tbe statute; but tbe preponderance of authority is to tbe effect that the party may admit tbe contract and yet plead and insist on tbe statute and its application. (22 Am. & Eng. Ency. of Law, 979, and cases cited; 2 Story, Equity Jurisprudence [13th ed.], secs. 757, 758.)
It is further urged that tbe plaintiff was allowed to testify to tbe terms of tbe verbal agreement without any objection on tbe part of defendant, and that by tbis tbe right to invoke tbe statute was waived, and we are cited to tbe decision of tbe case of Nunez v. Morgan, 77 Cal., 427, in support of the argument. Tbe opinion cited was rendered, so far as we can ascertain by its reading, in a case in which tbe defendant in pleading contented himself with tbe denial of tbe existence of the agreement and did not plead tbe statute of frauds, and did not object to tbe introduction of evidence of a parol agreement, and it was
It is claimed that tbe nephew, in reconveying a part of tbe property to tbe plaintiff, purposely omitted to include tbe land in dispute herein. Tbe testimony in tbe record before us relative to this point all tends to establish that tbe deed by which tbe reconveyance was effected was ■prepared by tbe request of the plaintiff and included such property as be described;, that he furnished tbe description at a time when tbe nephew was not present, and that tbe plaintiff knew that tbe land in controversy was omitted from such instrument. In tbe opinion in tbe case of Dailey v. Kinsler, supra, where tbe question of tbe allowance of tbe establishment of a trust resting in a parol promise to reconvey real estate to a grantor was under
Affirmed.