80 Neb. 584 | Neb. | 1908
Lead Opinion
Plaintiff brought this action in the district court to cancel and set aside a deed of conveyance to 80 acres of land
The appellants, Frank Adams and wife, are the son and daughter-in-law of the appellee. The following is a substantial statement of the facts out of which this controversy arose: Amanda E. Wetherell and her husband separated. Each was the owner of real estate, and upon their separation they entered into a contract whereby each released, or attempted to release, to the other any rights that the respective parties may have been entitled to in the lands of the other by reason of their marital relation. Amanda E. Wetherell owned the 80 acres in controversy, and leased the same unto the appellants, and resided with them. Mrs. Wetherell had two other children, daughters, both of whom were married. It appears that Mrs. Wetherell had promised that the 80 acres in controversy should be given to her son at her death. The rental for the 80 acres was $110 a year, and from her scanty income she was unable to make such repairs and improvements upon her premises as she desired to have thereon. They discussed the question of making these improvements and repairs, and he was willing to make them, provided he was assured that the premises would be given to him at his mother’s death. They decided to go to Central City and arrange for drawing such papers as would vest the title to the land in Mr. Adams at her . death. On'the 20th day of January, 1905, they went to the office of Patterson & Patterson, attorneys at law, in Central City, where Mrs. Wetherell had them prepare a will, which she executed, wherein the premises were devised to Adams. After this was done, it seems that he was still not satisfied, and had
It Avill be seen that this action hinges upon the question as to whether or not there Avas a delivery of the deed by Mrs. Wetherell to her son. There is a sharp and irreconcilable conflict in the testimony. It appears that Adams made certain improvements upon the premises in the way of a workshop, planting' some trees and some tame grass seed, and papering and painting the interior of the house, and that he paid the taxes upon the land for the year 1905. All that he did in this respect would be consistent Avith the claim of Mrs. Wetherell that he was to make the improvements upon the understanding that he was to have the property at the death of his mother. There are certain circumstances that tend to corroborate Mrs. WetherelPs testimony. It would seem that Adams was entirely satisfied to make the improvements and repairs if he could be assured that the land would be his at his mother’s death. To accomplish this purpose her will was executed. He seems then to have had some fears of the claims of Mr. Wetherell, and for that reason desired the deed. This deed was signed and acknowledged, but it was agreed between them that it should not be delivered until Mrs.
While the parties to this suit are entitled to a trial de novo in this court, yet this court has held, in Cooley v. Rafter, ante, p. 181: “The rules laid doAArn by this court for its guidance in such cases in Faulkner v. Simms, 68 Neb. 299, as well as in subsequent cases decided under the present statute, are sound and indispensable to the due
The judgment of the trial court is amply supported by the evidence, and we therefore recommend that it be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.
Rehearing
A statement of the facts may be found in the opinion, ante, p. 584. Plaintiff’s action is founded entirely upon the alleged surreptitious possession by defendants of the deed in contowersy. In their answer defendants pleaded the delivery of the deed to them. The evidence, hoAvever, discloses that at the time of the execution of the deed the
It is now contended upon a motion for a rehearing that the decree of the court which ive affirmed will bar the defendants from asserting whatever right or title they may have under the contract above referred to. We considered that defendants’ right to the land derived from the possession of the deed only was pleaded, tided or determined, and the decree of the court only quiets and confirms the plaintiff’s title as against the deed, which it is adjudged was never delivered. The judgment must not be taken as a bar to whatever rights the defendants have or may have hereafter under the contract of the plaintiff to devise the land to her son, nor under the contract for possession during her lifetime.
With this construction placed upon the decree of the court it is apparent that a rehearing is unnecessary, and we recommend that the defendants’ motion be denied.
By the Court: For the reason given in the foregoing-opinion, defendants’ motion for rehearing is
Overruled.