52 Neb. 46 | Neb. | 1897
In this action, instituted in the district court of Douglas county by the defendant in error, she sought a recovery of certain sums which she alleged became her due from plaintiff in error by reason of a breach of a covenant of warranty contained in a deed of conveyance of real estate executed and delivered by him to her, pursuant to and in completion of her purchase of said realty from him. She was successful in the district court and was awarded a judgment, and he seeks in this court a review of the proceedings in the court below.
“Plaintiff alleges the fact to be that the only title or interest the said Troxell had in said property he pretended to convey by his said deed above described, was the pretended title obtained by the said conveyances from said Francis Leon Englebert,
*48 “Plaintiff further alleges that at the time of making said conveyances on the 4th day of August, 1885, and the 21st day of June, 1886, the said Francis Leon Englebert was a minor under the age of twenty-one years; that said J. Lee Englebert departed this life the 22d day of September, 1888, and that the only interest he had in said . property at any time was that of a life estate, which said ('state expired on the 22d day of September, 1888.
“Plaintiff further avers that said Francis Leon Englebert attained his majority on the 11th day of October, 1889, and shortly thereafter disaffirmed his said conveyances to said George E. Pritchett, and on the 14th day of November, 1889, commenced his suit in the district court of Douglas county, Nebraska, against said Benjamin F. Troxell and Emma J. Troxell, his wife, George E. Pritchett, and this plaintiff, together with others, in Avhich suit the said Francis Leon Englebert disaffirmed the said deed and asked that the said conveyances to said George E. Pritchett be set aside and the said title canceled and declared null and void, and that the said Francis Leon Englebert’s title be affirmed and quieted in him, for the reason that the said Francis Leon Englebert was a minor at the time of making said conveyances.
“Plaintiff further avers that all of said parties were duly served with process of this court; that said defendants George E. Pritchett and Benjamin F. Troxell appeared in said cause and answered said petition; that the said cause proceeded to a hearing and on the 1st day of August, 1891, the court held that the said conveyances to the said George E. Pritchett were null and void and of no force and effect and ordered that the same be canceled and that all deeds, mortgages, conveyances, plat-tings, and dedications made by parties subsequent to said deeds made by said Francis Leon Englebert to the said George E. Pritchett be Aracated and set aside; that a decree of the court was entered on the 1st day of August, 1891, and is found in journal 7 at page 566; that said decree remains in full force and effect and binding upon*49 all the parties to said suit, among whom are included the defendant in this case, whereby plaintiff has been deprived of all right and title in and to said premises, and the title which the defendant pretended to convey to the said plaintiff is void and of no force and effect, and the plaintiff alleges that the whole title to said property was in Francis Leon Englebert at the time of commencing this suit.”
It is argued that the evidence was insufficient to sustain the finding made by the trial court and consequent judgment rendered. This is based on the proposition that it was necessary for the defendant in error to show that she had been evicted by, or surrendered the premises to, the holder of the paramount title; that neither was shown, and hence the proof was insufficient. It appears from the record that the defendant in error had improved and was in the occupancy of the said premises as a home for herself and family, and it was neither pleaded or proved that there had been an eviction in favor of the holder of the paramount title, or a surrender in any manner to the holder of such title. There were pleadings and a decree in the case of Francis Leon Englebert against Benjamin F. Troxell, Leonora Z. Johnson, and others introduced in evidence. The action was one instituted by the plaintiff named to have the conveyances to Pritchett of the lot in the addition to Omaha of which the property referred to in the case at bar was a part, and the subsequent conveyances of all descriptions or hinds, vacated. In the decree in the case of Englebert against Troxell and others there were statements of the findings therein in relation to the conveyances to Mr. Pritchett, from which as evidenced it might be inferred that the court had considered the deeds as transfers, not voidable, but void and of no force from their inception. A careful analysis of the whole decree, however, convinces us that it was predicated upon the finding that the grantor in the deeds, the plaintiff in the suit for their annulment, was at the time of their execution and delivery a minor, and might, as he
Reversed and remanded.