David v. Tucker, 40511
| Citation | 244 N.W.2d 197,196 Neb. 575 |
| Decision Date | 21 July 1976 |
| Docket Number | No. 40511,40511 |
| Court | Supreme Court of Nebraska |
| Parties | Lyle E. DAVID, Appellee, v. Erna TUCKER, Appellant. |
Syllabus by the Court
1. Upon the death of one of the joint tenants, the survivor takes the entire title, and any interest that the survivor would otherwise take under the homestead law is merged in the new title of the survivor.
2. The memorandum required by the statute of frauds is evidence of the oral contract and must contain the essential terms of the contract. Generally, the memorandum should contain the names of the parties, a description of the land, the price, the general terms of the agreement, and the signature of the vendor.
3. Ordinarily, time for performance is not an essential term of the contract, but it must be included in the memorandum to be enforceable. If omitted from the memorandum, the time for performance is not enforceable but the legal efficacy of the memorandum is not destroyed.
4. Generally, parol evidence is admissible not to vary, contradict, or control the written contract of the parties, but to apply it to the subject matter and thereby render certain that which otherwise would be doubtful and indefinite.
5. A party alleging undue influence has the burden to prove that the party influenced was a person who would be subject to undue influence, that there was an opportunity to exercise undue influence, that there was a disposition to exercise undue influence, and that the result was the effect of undue influence.
Michael O. Johanns, Edward E. Hannon, Cronin & Hannon, O'Neill, for appellant.
William W. Griffin, O'Neill, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
This is an action for specific performance of an option to purchase real estate. The trial court found generally for the plaintiff, reformed the memorandum of the agreement to state the terms for payment, and granted specific performance.
The defendant has appealed and contends the agreement was invalid because it failed to satisfy the requirements of the homestead law and the statute of frauds and was the result of undue influence. The defendant also counterclaimed for damages for waste and the reasonable rental value of the property.
The land involved in Section 13, except the southwest quarter, in Township 26 North, Range 12, and the northwest quarter of Section 17, Township 26 North, Range 11, all West of the 6th P.M. in Holt County, Nebraska. The land had been owned by the defendant and her late husband, Fred Tucker, as joint tenants with right of survivorship. When Fred Tucker died in 1956, the defendant became the owner in fee simple of the land. Any interest that she might have otherwise received under section 40--117, R.R.S.1943, became merged in her new title. See Niemann v. Zacharias, 185 Neb. 450, 176 N.W.2d 671. Section 40--104, R.R.S.1943, was not applicable to the option agreement and the defendant's claim that the agreement was invalid because not acknowledged was without merit.
The plaintiff had been a tenant upon the property for 19 years. In the fall of 1972 or the winter of 1973, the plaintiff told the defendant he was interested in buying the property. On April 15, 1973, the defendant wrote to the plaintiff stating that she would like to have $100 an acre for the 160-acre meadow and $95 an acre for the rest of the land. She further stated that she hoped this would be 'O.K.' with the plaintiff, and if not she would rent the land to him again.
In the fall of 1973, on two occasions, the plaintiff asked the defendant to accompany him to the Farmer's Home Administration office in O'Neill, Nebraska, so that he could make arrangements to finance his purchase of the land. On each occasion the defendant stated that she wanted to wait for a while.
On February 11, 1974, the defendant wrote to the plaintiff stating that she was undecided about what to do, but that $100 an acre was too low a price for the land and she could not sell it for that. She further stated that if the plaintiff 'can not do that,' she would rent it out again.
On February 14, 1974, the plaintiff went to see the defendant to find out why she had changed her mind. The defendant stated that she had been offered $125 an acre for the land. The plaintiff stated he would pay $125 an acre but would not go above that figure. The defendant said the plaintiff should pay more, but according to the plaintiff, finally said $125 an acre would be satisfactory. The parties discussed terms and, according to the plaintiff, the defendant wanted 29 percent down with the balance on a 10-year installment contract with equal payments and 7 percent interest. The defendant had received a letter from a lawyer, some time previously, in which she had received advice as to how to sell the land. The parties finally arrived at an agreement to lease the land to the plaintiff for another year with an option in the lease for the plaintiff to purchase the land. A memorandum in the handwriting of the defendant was then prepared and signed by both parties. The memorandum, which is exhibit 4, was as follows:
'Febr. 14th 1974, I lease the 640 acres to Lyle David for $2,100--$800. due the first of March, 1974, balance due Nov. 1974, with right to buy the place in 1974, for $125.00 an acre with 7 per cent interest.
'Rec'd of Lyle David $1.00 in cash to make this legal,
'on 10 year contract
'Erna Tucker
'Lyle E. David.'
On January 14, 1975, the plaintiff wrote to the defendant stating he wished to exercise the option and enclosing a form of a proposed real estate contract stating the terms in greater detail than the memorandum of February 14, 1974. The defendant then consulted local counsel who wrote to the plaintiff on February 13, 1975, stating that the defendant would not perform the option agreement.
The statute of frauds provides that a contract for the sale of any land shall be void unless the contract or a memorandum thereof be in writing and signed by the party by whom the sale is to be made. § 36--105, R.R.S.1943. The memorandum is not the contract but only written evidence of an oral contract. Ord v. Benson, 163 Neb. 367, 79 N.W.2d 713. The memorandum must contain the essential terms of the contract. Heine v. Fleischer, 184 Neb. 379, 167 N.W.2d 572; Kubicek v. Kubicke, 186 Neb. 802, 186 N.W.2d 923. Generally, the memorandum should contain the names of the parties, a description of the land, the price, the general terms of the agreement, and the signature of the vendor. Campbell v. Kewanee Finance Co., 133 Neb. 887, 277 N.W. 593. Ordinarily, time for performance is not an essential term of the contract, but it must be included in the memorandum to be enforceable. Heine v. Fleischer, supra.
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