Ambler v. Jones

• Decision Date: 15 December 1917
• Docket Number: 19644
• Citation: 165 N.W. 886,102 Neb. 40
• Parties: STEPHEN J. AMBLER ET AL., APPELLEES, v. JOHN C. JONES ET AL., APPELLANTS
• Court: Nebraska Supreme Court

165 N.W. 886

102 Neb. 40

STEPHEN J. AMBLER ET AL., APPELLEES, v. JOHN C. JONES ET AL., APPELLANTS

No. 19644

Supreme Court of Nebraska

December 15, 1917

APPEAL from the district court for Cass county: JAMES T. BEGLEY JUDGE. Reversed and dismissed.

Judgment of the district court reversed and plaintiffs' cause of action dismissed.

Samuel J. Tuttle, for appellants.

Clarence E. Tefft and Matthew Gering, contra.

HAMER J. LETTON, J., concurring in conclusion. SEDGWICK, J., not sitting.

OPINION

HAMER, J.

This action was brought by Stephen J. Ambler and Helen C. Ambler plaintiffs and appellees, against John C. Jones and Minnie Jones, defendants and appellants, and Thomas Murtey and The First National Bank of Weeping Water, defendants and appellees. The plaintiffs Ambler are husband and wife. So are the defendants Jones. The action is for specific performance. The plaintiff Stephen J. Ambler owned 17 1/4 acres of land in Delta county, in the state of Colorado, and the defendant John C. Jones owned 15 acres of land in Cass county, Nebraska. On or about January 14, 1915, they made a written agreement to trade and exchange these tracts. The contract bears that date. With the Ambler land was to go certain stock in a ditch company and certain water rights. The wives of the parties did not sign the agreement; and the next day, according to its date, a deed of the Nebraska land was signed by the defendants Jones, by which it was to be conveyed to Helen C. Ambler. The certificate of acknowledgment appears to have been signed by the notary public, Thomas Murtey, three days later, January 18, 1915. The plaintiffs seek to compel an exchange of the properties.

The wife, Minnie Jones, makes a separate answer to the effect that she did not sign her name to the deed "voluntarily and of her own free will, but by the coercion, threats and duress of her said husband, said John C. Jones, by repeated urgings and persuasion, even to the extent of leaving her, and himself going to the state of Colorado. And that these urgings, persuasions and threats, operating upon her exceedingly nervous state and condition, caused her to sign said deed." She also alleged that she was violently opposed to the signing of the said deed and to the exchange of their homestead for lands in Colorado, and that she never executed the deed otherwise than to sign it, and never delivered it or in any manner sanctioned its delivery; that she never "knowingly appeared before any notary public or other officer legally authorized to take her acknowledgment to said deed, nor did she ever acknowledge the same to be her voluntary act or deed, or use or employ other words in substance and effect meaning the same." The land which the plaintiffs seek to have conveyed is the Jones homestead.

The defendant John C. Jones answered that the land was the homestead of his family, consisting of his wife, his daughter and himself, and that they had occupied the same for more than ten years continuously; also that the contract made between Stephen J. Ambler and himself was made under the general statutes of Nebraska respecting agreements for the conveyance of lands and respecting conveyances of the homestead, and unenforceable and incapable of ratification.

Thomas Murtey one of the defendants, is the notary public in the case, and is also cashier of the First National Bank of Weeping Water. He verified the answer made by himself and the bank. Both Murtey and the bank in their answer disclaim any interest in the deeds and contract, and say that the same are in the hands of the clerk of the district court for Cass county, Nebraska, or in the hands of the court reporter. They seek to have the action dismissed and to be relieved from liability for the payment of costs.

Murtey testified that he drew the contract signed by Jones and Ambler, and also that he drafted the deeds; that he put the contract and the deeds in the vault of the bank. There seems to have been some hurry in the execution of the deeds. January 18, 1915, Murtey had both deeds and the contract in his possession. Jones objected that Ambler's abstract did not have a plat, and Murtey testified that he was not sure whether he got it from the county surveyor of Delta county, Colorado, or not, but he believed that he did. The testimony is not very clear upon that point. It barely suggests that Murtey probably tried to help Ambler complete the trade.

The case presents, first, the question of whether the deed was legally executed and acknowledged; second, whether it has been delivered, or is still within the control of Minnie Jones, who claims the land as her homestead.

Minnie Jones testified that Mr. Jones tried to get her to sign the deed, and that she told him that she did not want to, and urged certain objections against the Ambler property, among which were that she "didn't want Mr. Ambler's orchard; it was too far away." She said that Mr. Murtey brought her the deed, and that she signed it. "Q. At any rate, when you got to the bank, at the request of either Mr. Murtey or your husband, you signed that deed, didn't you? A. I signed a deed, Yes, sir. Q. You did that voluntarily? A. No, sir. * * * Q. Was the signing by you of that deed your voluntary act? A. No, sir. No; it was not voluntary; no, indeed, it was not. * * * Q. While you were at Mr. Murtey's office, Mr. Murtey told you this was a deed, didn't he? A. No; Mr. Jones signed the deed, and Mr. Murtey took the pen from Mr. Jones and said, 'Now, your name Mrs. Jones,' and I signed my name."

Thomas Murtey testified that he did not recall asking Mrs. Jones when she signed the deed, if it was her voluntary act and deed; that he prepared the deed under Mr. Jones' direction, and that Mr. Jones and his wife signed the deed in his presence, and that it was acknowledged on the 18th day of January, 1915; that he saw Mrs. Jones sign the deed, and that she made no objection. "Q. But did she acknowledge that to be her voluntary act and deed? A. I can't remember as to the acknowledgment for her, whether she did or not. I can't remember. * * * Q. Well, did she acknowledge it to be her voluntary act and deed in substance? A. She did to my idea of things. Q. To your idea? A. Yes, sir. Q. What do you mean by that? A. She came in and voluntarily signed the deed before me, as a witness, as a notary."

John C. Jones testified: "Q. What, if anything, did Mr. Murtey say to you or your wife as to acknowledging the deed? A. He didn't say anything. Q. Did you hear him ask Mrs. Jones, or ask yourself, if this was your voluntary act and deed, or words to that effect? A. No, sir; I did not."

On the first point there is the testimony of Mr. and Mrs. Jones, and of the notary public, Murtey. This testimony appears to establish the fact that the usual formalities were not observed. It is not shown that Mrs. Jones was asked whether she acknowledged the instrument to be her voluntary act and deed. Because of the testimony of the notary public relating to the execution of the deed, and his refusal or failure to testify that Mrs. Jones acknowledged the instrument as her voluntary act and deed, we will examine all the evidence with a view to ascertaining whether she was coerced and unduly influenced. Women are generally home-builders and home-keepers. Mrs. Jones did not want to trade. She testified: "It was against my will from the beginning. * * * I didn't want to transfer it; I did not." She told Ambler and Mrs. Ambler that she did not want to trade. She said, referring to the Ambler property, "No; we don't want it; it is too far away. * * * Mr. Jones tried every effort he could to persuade me. I told him he couldn't persuade me; I didn't want to trade; I didn't want that orchard; I didn't want to trade."

Mrs Jones testified that she did not go down to the bank where the deed was kept until after the expiration of about a week. When she finally did go and sign it, she says: "It was my hand, but not my will." She appears to have objected. "I made the remark in there (meaning the bank) they had all better keep their own land." She appears to have fought off the trade for two years. "Q. You said you fought it for two years? A. Ever since it commenced two years ago." She was unwilling to move to Colorado. She testified: "No; I never intended to go to Colorado. Q. Was that one of the reasons why you objected to this transaction? A. I objected to it because it was so far away. * * * I didn't want it;--that's the reason the trade didn't go through two years ago. I fought it down all the time, and talked it down for something near two years." She also testified: "He told me, if I wouldn't go (to Colorado), he would go. Q. Did he threaten you in any other way? Did he say, if you didn't sign this deed, he would leave you? A. He said he would go out there, and I could stay here. I don't know what he meant. ...