Abraham v. Abraham

• Decision Date: 15 May 1979
• Docket Number: No. 41992,41992
• Citation: Abraham v. Abraham, 279 N.W.2d 85, 203 Neb. 384 (Neb. 1979)
• Parties: Mary Alice ABRAHAM, Appellee, v. Sidney Dale ABRAHAM and Bess Abraham, Appellants.
• Court: Nebraska Supreme Court

Page 85

279 N.W.2d 85

203 Neb. 384

Mary Alice ABRAHAM, Appellee, v. Sidney Dale ABRAHAM and Bess Abraham, Appellants.

No. 41992.

Supreme Court of Nebraska.

May 15, 1979.

Syllabus by the Court

Assignments. An assignment is not binding if obtained by misrepresentation, or if not supported by consideration.

Edward D. Hotz of Hotz, Kluver & Kizer, Omaha, for appellants.

S. J. Albracht of Lathrop, Albracht & Swenson, Omaha, for appellee.

Heard before BOSLAUGH, CLINTON and WHITE, JJ., and RIST and WINDRUM, District Judges.

WINDRUM, District Judge.

Mary Alice Abraham, appellee, was the petitioner in the action originally filed. Sidney Dale Abraham was the respondent.

On October 8, 1976, petitioner filed her petition in the District Court for Cherry County, Nebraska, against respondent, Sidney Abraham, for a dissolution of marriage. In the answer, the respondent, Sidney Abraham, alleged among other things, that all of the personal property and effects of the parties had been evenly divided, but that there remained for distribution the unpaid balance of a certain contract for the sale of real estate and personal property to a Mr. and Mrs. Francke, on which there then remained a balance due of $39,000. The respondent further answered that he was indebted to Bess Abraham, his mother, in the sum of $25,000 for money advanced to the parties during the marriage, and that said indebtedness was due and should be considered by the court in making an equitable division of the contract of sale.

Thereafter, on June 30, 1977, the petitioner filed an application for permission to join a third party respondent, Bess Abraham, alleging that Bess Abraham claimed to have an interest in proceeds from the sale of property which the petitioner claimed as a marital asset. Permission to join Bess Abraham as a party was granted and an amended petition was filed by the petitioner on June 30, 1977. Petitioner alleged as follows: "Petitioner fears that unless restrained and enjoined, the respondent, Bess Abraham, will obtain possession of certain proceeds due and owing pursuant to the aforementioned land sale contract and appropriate funds to her personal use to the detriment of the petitioner herein." On July 13, 1977, petitioner filed an affidavit in which she stated that after the filing of her original petition, she learned there was in existence a purported assignment, of the proceeds due under the land contract above mentioned, to Bess Abraham, and that she, the petitioner, emphatically stated that any signature of hers on such an assignment was a forgery and not her true signature.

Bess Abraham answered the petitioner's amended petition and alleged that on or about December 2, 1971, petitioner and the respondent, Sidney Abraham, unconditionally assigned and transferred their rights to the proceeds of the land contract to Bess Abraham and alleged that the land contract was not a marital asset subject to distribution. The respondent, Sidney Abraham, likewise filed an amended answer to petitioner's petition and substantially agreed with his mother. After appropriate proceedings, the matter was transferred to the District Court for Douglas County, Nebraska, where a hearing was held, commencing on November 2, 1977. The court found that the marriage was irretrievably broken, and was, therefore, dissolved. The court awarded to each party the personal property then in his or her respective possession, free and clear of any claim on the part of the other, and ordered the assignment of the land contract by the respondent, Sidney Abraham, to the defendant, Bess Abraham, as being valid, but the assignment by the petitioner to Bess Abraham was invalid and of no force and effect for the reasons that: (a) Petitioner's assignment of the proceeds of the land sale contract was without adequate consideration, and (b) petitioner's assignment was procured by the misrepresentation that the purpose of the assignment was to place the proceeds of the land sale contract beyond the reach of Sidney's creditors.

After the overruling of a motion for new trial, both the respondents appealed.

Sidney and Mary Abraham were married in Omaha, Nebraska, on August 7, 1948. Between that date and 1967 they lived and worked in various places, a good part of their employment being in gambling casinos in Nevada. From October 1965 to June 1967 they lived mostly in Omaha, and their only employment during that period was an unsuccessful 3 months in a Sioux City, Iowa, restaurant venture.

In June of 1967, Mary and Sidney Abraham purchased a drive-in restaurant in Valentine, Nebraska. They were required to pay a $5,000 downpayment. There is a disagreement as to whether or not the mother, Bess, loaned them the downpayment. The husband and wife successfully operated the restaurant.

During the marriage of the parties, respondent Bess allowed her son, Sidney, to write checks upon her account. There is various testimony by the respondents and agreement between the two respondents that respondent Bess advanced several sums of money to respondent Sidney, and that on July 24, 1968, she assumed a $20,250 obligation of Sidney's at the First National Bank of Valentine. Bess testified she paid a substantial amount directly to the brokerage firms of Merrill Lynch, Pierce, Fenner & Smith, Inc. and Lamson Brothers on behalf of Sidney and Mary. She did not take notes from her son and daughter-in-law because they were family. Petitioner testified that she knew very little, if anything, about the loans and nothing of the stock purchases. At the trial, Sidney estimated the indebtedness to his mother at $50,000.

In October of 1971, respondent Sidney Abraham was convicted of purchasing stolen meat, a felony. On October 21, 1971, Sidney executed a mortgage conveying the real estate upon which the restaurant was located to his mother, as mortgagee, in the sum of $65,000. This mortgage was not signed by petitioner. On December 2, 1971, the petitioner and respondent Sidney entered into a contract selling the restaurant, including the real and personal property, for the sum of $65,000, plus inventory, payable $1,000 as downpayment, $15,240 to be paid on or before February 1, 1972, and the balance to be paid in installments. The contract provided that at the time the $15,240 payment was made by the buyers, the sellers would secure discharges from amounts owed on a contract of sale due to Eve Eads, from whom they had originally purchased the property; a mortgage to the Small Business Administration; the mortgage due Bess Abraham; and an amount for inventory due Eve Eads. Shortly thereafter, petitioner and Sidney Abraham each assigned to Bess Abraham his or her respective interest in the contract of sale. In consideration of such assignment, Bess Abraham agreed to pay the indebtedness due Eve Eads under a contract of sale of real estate; to pay the indebtedness due the Small Business Administration secured by a mortgage on the real estate covered by the contract of sale; and to discharge of record her own mortgage dated October 21, 1971. While originally petitioner denied signing said assignment, it is quite evident that she did so. An escrow agreement was entered into providing...