44 Neb. 759 | Neb. | 1895
This is a petition in error and presents for review a judgment from the district court of Pierce county. The essential facts as they appear from the pleadings and proofs are as-follows: On the 29th day of September, 1876, R. S. Lucas, late of said county, conveyed by warranty deed to his wife, ■ Ada W. Lucas, the south half of the northwest quarter .and the north half of the southwest quarter of section 34;. the north half of the northwest quarter and the norih half .of the northeast quarter of section 35; the undivided one-half of the north half of the northeast, quarter, and the south half of the southeast .quarter of section 27; the undivided north half of the southeast quarter of section 34; the undivided half of the north half of section 26, and a half interest in the townsite of Pierce, all situated in township 26, range 2 west, in said Pierce county, beside the-grantor’s personal property of every description, including-moneys and credits, for the expressed consideration of $100» The value of the property above described, including a balance in bank of about $500 and some $1,200 in county warrants, was from $12,000 to $15,000. Said Lucas, who died in the month of November, 1877, left surviving him ten children, the fruits of his marriage with the said Ada W., ranging from two to twenty years of age. His widow was soon thereafter married to Amos W. Seeley, who died some time prior to the 29th day of December, 1884, the exact date of his death not being shown by the record, leaving one child the fruit of said marriage. On the day last named said widow, by written lease, conveyed, a por
The causé as presented to the district court involved several interesting and important questions which are not necessarily included in the present investigation, and will not, therefore, receive more than a passing notice.
It is argued by the plaintiffs: (1.) That the deed from R. S. to Ada W. Lucas was never delivered in such manner as to give effect thereto as a conveyance of real estate. (2.) It was made in lieu of a' will to take effect, if at all, after the death of the grantor. (3.) If delivered as claimed, it was made with intent to provide for the grantor’s wife by conveyance of all his property, with nothing reserved for his children, a provision unreasonable and, therefore, void. Mr. Lucas, at the date of the deed, was contemplating a visit to the Centennial Exposition at the city of Philadelphia, and there is evidence strongly tending to prove that he wás possessed by a morbid fear, amountingalmost to a conviction, that he would not live to return. There is also evidence which would warrant the inference that the conveyance was originally intended rather as a testamentary disposition of the property therein mentioned, to take effect after the death of the grantor. Mrs. Lucas, it should be remarked, died some time previous to the commencement of this action, and the question of the understanding between herself and her husband at and before the execution of the deed is left in doubt. The defendant, who was then a member of his father’s family, testified as follows: “I
The doctrine has been freely asserted by this court that the deed of a husband to his wife, although void at common law, will be upheld whenever equitable grounds exist therefor, such, for instance, as a valuable consideration. (Smith v. Dean, 15 Neb., 432; Johnson v. Vandervort, 16 Neb., 144; Furrow v. Athey, 21 Neb., 671; Ward v. Partin, 30 Neb., 376; Hill v. Fouse, 32 Neb., 637.) In Furrow v. Athey, a case quite similar to the one before us, the court, by Reese, J., after holding the money received by the grantor from his wife’s separate estate to be a sufficient consideration for the deed to her, says: “But aside from this we can see no reason why the decree of the district court is not correct. It appears that in 1868 Charles Furrow, the husband, now deceased, purchased the land in question from the United States. At that time he with defendant, his wife, settled upon it and resided there together until his death, which occurred in 1880. In 1879, while in
It is alleged by defendant, and not seriously disputed» that 160 acres of the premises in controversy, to-wit, the south half of the northwest quarter and the north half of the southwest quarter of section 35, was in the deed of RS. Lucas by mistake described as the corresponding subdivision of section 34. Plaintiffs’ counsel treat the answer as an application for a reformation of said deed, although we find no prayer therefor, and argue that such relief should be denied for two reasons: (1.) The conveyance from R. S. Lucas was purely voluntary and will accordingly not be corrected by a court of equity without the consent of all parties interested. (2.) The defendant’s claim comes too late after an interval of thirteen years. Referring to the first contention, it is sufficient to say that the district court, as we have seen, evidently found that the money received by Lucas from his wife’s separate estate was a sufficient consideration for the conveyance, and that it cannot be regarded as voluntary within the meaning of the authorities to which we are referred by counsel. As to the second contention, it may be said that Mrs. Lucas took possession of the 160 acres in question soon after the death of her said husband, and asserted title thereto continuously until the time of her death, more than ten years later. In the year 1884. in an action in the district court of Pierce
There is a further contention, viz., that the defendant failed to perform the conditions of„ the lease by the furnishing of vegetables and other provisions to Mrs. Lucas as stipulated therein, and that he must therefore be “deemed holding over his term.” (Civil Code, sec. 1021.) It does not appear, however, that any complaint was ever made by the party most concerned during her lifetime, and the terms and conditions of the lease or the manner of their performance cannot, for the purpose of this action, be of interest to the plaintiffs, since they claim through their father, R. S. Lucas, and in effect disclaim any title derived through their mother. The judgment must, for reasons stated, be
Affirmed.