94 Neb. 635 | Neb. | 1913
This action was begun as an action in ejectment by the administrator of the estate of Aehsah Holloway, deceased, to recover possession of 320 acres of land in Buffalo county. The defendant answered, among other things, alleging an equitable right to the land, and upon his former appeal from an adverse judgment this court held
The legal title to the land was in the name of Ira Holloway, the defendant’s father, and upon his death the title passed by his will to his wife, Achsah Holloway, the defendant’s mother. The defendant alleged that his father had sold the land to him in consideration of money which he had loaned to his father. The details of his answer are set out in the former opinion and it is unnecessary to repeat them here. About 30 years ago the defendant’s father, who was a resident of Ohio, and shortly after removed to Michigan where he resided until the time of his death, purchased the land in question, and also procured a timber claim upon an adjoining quarter section. After-wards the timber claim was transferred to the defendant, and he has resided thereon for nearly 30 years. It appears from the evidence that the defendant’s father was indebted to several of his children in a considerable amount. His indebtedness to the defendant in the sum of at least $1,500 appears to be established by the preponderance of the evidence. There is some evidence tending to show that his father owed the defendant an additional amount, possibly $3,000 more. The defendant took possession of the land in dispute in 1884 or 1885 and has ever since been in possession thereof. Soon after taking possession of the land he fenced the same and has since made some other improvements thereon. He never was called upon for any rent until after the death of his mother in 1907. The defendant was not allowed to testify to any transactions or
Defendant’s exhibit 2 purports to be a long letter written by Ira Holloway in 1886. It is on coarse brown paper and written in pencil. It covers a variety of subjects, and contains a sentence which defendant claims should be read: “I rec’d a letter from Chester last week that he had
There is, perhaps, other evidence in the record that might be considered as indicating that the defendant is the owner of this land, but it is not of sufficient importance to. make it advisable to extend this opinion by reciting it here.
The evidence produced by the plaintiff is amply sufficient to rebut the defendant’s evidence, and to establish that Ira Holloway never agreed to transfer the legal title to the land to the defendant. It is not necessary to recite and review the great volume of evidence. We will call attention to a few items as illustrating its general character: One of the appraisers of the estate testified that when he and his associates were making an inventory of the property of Aclisah Holloway, deceased, he called upon the de
Under our present statute, we are required to try this case de novo, without reference to the decision of the trial court. When several witnesses who disagree as to an important fact have testified in the presence of the trial judge, and the court has had an opportunity to observe their manner and the many circumstances that tend to give confidence or arouse distrust as to the reliability of their testimony, this court will take into consideration the estimate of the trial court as' to the reliability of the evidence.
On the evening after the funeral of Achsah Holloway, several of the heirs being present, and the defendant with them, some of the papers of the deceased 'were examined, and several of the persons present testified upon the trial that the defendant was asked to state the property of the deceased, Avithin his knoAvledge, Avhich lie did, and among other things stated this land in dispute and the probable value thereof. This testimony is denied by the defendant,. and by his two sisters, above named, who were also present. The evidence of some of these witnesses was taken by deposition, but some of them testified to this conversation in open court, and the trial judge appears to have believed their testimony.
During all of these years the taxes on this land have been paid, principally, if not entirely, by the parties who held the legal title, or by some one in their behalf. The defendant testified that for one or two years, 25 or 30 years ago, he paid the taxes. He took receipts in his father’s name, but paid them, as he says, with his own money. There is other evidence in the record, some of it strongly tending to show that this land Avas regarded by all, including the defendant, as the land of I-ra Holloway, during his lifetime, and after his death as the land of
The judgment is therefore reversed and the cause remanded, with instructions to take further evidence, if necessary, and find the amount due defendant with simple interest at 7 per cent, per annum. Against this, offset the value of the use of the land, and enter a decree in favor of plaintiff for possession of the land upon payment of balance due defendant as so found. Unless the same is paid within 90 days from the entry of the decree, the land shall be sold, and costs and defendant’s claim paid out of the proceeds, and balance to the plaintiff.
Reversed.