30 Neb. 489 | Neb. | 1890
This action was brought by John Thompson, Sr., against his son, the defendant James Thompson, to obtain a decree
On the trial of the cause the court below found- the issues in favor of the defendant and dismissed the-action.-
The testimony tends to show that in the year 1881 John Thompson purchased a quarter section of land from- the B. & M. Railway Company. The purchase was made by John Thompson, Jr., and for his father, John Thompson, Sr., the agreement being taken in the name of John Thompson. Payments were made upon the land as they accrued, and no difficulty occurred between the father and son until the'year 1886. In the year 1885 the defendant cultivated a portion of the land, and some difficulty seems to' have occurred between him and his brother John. This culminated in the year 1887, when it was agreed that John should receive $500 for money that he had paid on the contract and that thereupon he was to surrender his claim to said land. In order to obtain the money to pay the balance due to the railway company on the land and to John the $500, it was necessary to effect a loan of $1,250. Thereupon, John, Sr., his sons John and James, applied to Louis Helmer, of Lincoln, for the proposed loan. It was stated to Mr. Helmer that the plaintiff, John, Sr., was nearly eighty years of age, and he (Helmer) said that his company would not make a loan to a person of that age. He testifies that he suggested that the land be conveyed to James, who was to execute a note and mortgage for the sum borrowed. This course was pursued and $1,250 Avas borrowed from Helmer. The B. & M Company was paid the balance due on the land contract, and $500 to John, Jr. In this testimony Helmer is corroborated by John, Jr.
The defendant contends that the conveyance to him AAras absolute, but fails to deny the material facts testified to by Mr. Helmer in regard to the necessity of placing the title in his name. Mr. Helmer also testifies that at the time he
The clear weight of testimony sustains the grounds of the petition, that the conveyance to James was not absolute, but for the purpose of obtaining a loan, and that there was no intention to make an absolute conveyance to the defendant. The judgment of the district court therefore must be reversed.
On the trial of the cause the will of the plaintiff John, Sr., was introduced in evidence, showing that the father intended to leave this land to the defendant. The father was living at this time, and the will was clearly inadmissible.
After the testimony was taken in the case, and after the case was submitted to the court, but before a decision was rendered — the case apparently having been taken under advisement — the father died. The survivors, however, stipulated that judgment might be rendered as of the day of trial. The judgment was so rendered.
It is suggested that the father left a will disposing of his estate. If so, the law has provided a tribunal to determine the validity of such will, and until so determined, it cannot be considered by this court. It is apparent, however, that the defendant has some interest in the land in controversy, but just what that interest is we have no means of determining. It is probable, too, that third parties have an interest in the land, as the defendant seems to have erected a dwelling house thereon.
The judgment of the district court is reversed, and the cause remanded to the district court with leave to the parties to file supplemental pleadings ; and the court may take further testimony and make further findings thereon and decide the ultimate rights of the parties.
Judgment accordingly.
