79 Neb. 632 | Neb. | 1907
The appellant, David Van Etten, brought this, action to quiet title to a strip of ground 7 feet wide and 120 feet long, being a part of lot 9, Oapitol addition to the city of Omaha. The north end of this strip of ground fronts on the south side of Harney street, and the east line of the strip is 74 feet west of the west line of C. W. Keyes’ land. The plaintiff in his petition alleges that he is the owner and has been in continuous possession .of this strip of land since the 7th day of December, 1878, and avers that the defendant, the Passumpsic Savings Bank, claims to be the owner of said strip of land by reason of certain conveyances, judgments and decrees of court, which are of record, and that these conveyances, judgments and decrees áre clouds upon his title.. He prays to have his title quieted and defendant enjoined from claiming any right of property or possession to said parcel of real
The facts gleaned from the record, necessary to an understanding of the case, are as follows: In 1878 one Gibson was the owner of a considerable portion of lot 9,' Oapitol addition to the city of Omaha, fronting on Harney street. In December of that year David Van Etten purchased from Gibson, and caused him to convey by warranty deed to Emma, L. Van Etten, a portion of this lot, 40 feet wide, fronting on Harney street, and 126 feet deep. The east line of this strip was described as being 74 feet west of the west line of O. W. Keyes’ land. This deed was recorded on the 7th day of December, 1878. Emma L. Van Etten, to secure the major portion of the purchase price, executed a mortgage to Gibson upon the land so conveyed to her. This mortgage was canceled and discharged upon the records by Gibson on the 20th day of July, 1880, and on the same day Gibson executed another warranty deed to Emma L. Van Etten, conveying to her a strip of land 40 feet wide by 120 feet deep in said lot 9. The east line of this strip was described as being 81 feet west of the west line of O. W. Keyes’ land, and in this deed was a recital that it was executed to conform to a corrected survey, making the point of commencement 81, instead of 74, feet west of the west line of the Keyes land, as described in the former deed, referring to it by
Plaintiff .contends that, as he paid the consideration for the purchase price of the property and directed the deed to be made to his wife, a trust resulted in his favor, and that he was the equitable owner of the property. It may be conceded, as a general rule, that, where one pays the purchase price for real estate and causes the title to be taken in the name of another, a trust will result, and that the person holding the legal title will' be deemed as holding the same for the person who paid the purchase price. But this rule does not obtain where the property is purchaséd by the husband and the title is taken in the name of the wife. In such case it will be presumed to be a gift or advancement to the wife, and there is no resulting trust. This doctrine has been substantially announced by this court in Gray v. Gray, 13 Neb. 453, and in Kobarg v. Greeder, 51 Neb. 365. In this case the plaintiff testified that the property was purchased for a home for himself and family, and that upon a portion of said premises he erected a house shortly after the purchase, in which he and his family have since resided. Where the property was intended to be a homestead and for the use of the purchaser’s family, and- the title thereto is taken in the wife’s name, although the husband paid the purchase price, we think the presumption
It is a well-established principle of law that a trustee, who holds the title to property, may defend for the beneficiary; and, when the title is attacked and the trustee defends with the knowledge and consent of the beneficiary, the beneficiary will be concluded"by the result of the litigation to the same extent as the trustee is concluded by it. In the actions brought by Emma L. Van Etten to recover possession of the property and to quiet the title thereto, it appears that David Van Etten appeared for her, acted as her attorney, and had actual, full and complete knowledge of the litigation, and, in fact, directed and carried it on. The litigation in the actions prosecuted by Emma L. Van Etten was not only conclusive of her rights, hut was conclusive of any rights that David Van Etten may have had in the property. He is as effectually bound by the decisions in the two former cases as if he had been a party thereto.
The plaintiff contends that the former decisions against Emma L. Van Etten are void, because by fraud the journal of the court was made to show that a verdict had been returned in the ejectment case for the defendant, when in fact it was rendered for the plaintiff, and that the judgment in the second action was based upon the adjudication in the ejectment action. It is sufficient answer to this to say that there is no competent evidence in the record to sustain the plaintiff’s contention. It is true, the court permitted the plaintiff, over objections, to testify that the verdict in the ejectment action was in favor of the plaintiff, but the verdict was not produced and offered in evidence, nor was the clerk of the court, who is the proper custodian thereof, called to ascertain whether or not the original verdict could be produced. No sufficient foundation was laid to permit the-plainiiff
It follows that the judgment of the district court is right and should be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.