Anderson v. Anderson
| Decision Date | 11 March 1949 |
| Docket Number | 32472. |
| Citation | 36 N.W.2d 287,150 Neb. 879 |
| Parties | ANDERSON et al. v. ANDERSON et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. An instrument otherwise admissible which comes from proper custody and appears valid on its face and which is more than thirty years old, the authenticity of which has not been brought into question, may be received in evidence without further identification under the 'ancient document' rule.
2. The 'ancient document' rule is not applicable to inauthentic copies of original instruments.
3. Where an attempt is made to enforce an oral promise the purpose of which is to establish an interest in land the attempt is to establish an oral trust in real estate and it must fail, since such a promise is void under the statute of frauds.
4. Courts of equity are empowered to compel specific performance of oral contracts for conveyances of real estate declared void by the statute of frauds in cases where there has been part performance.
5. Before a court of equity may decree specific performance, on the basis of performance, of an oral contract for the conveyance of real estate declared void by the statute of frauds the party seeking specific performance must prove an oral contract the terms of which are clear, satisfactory, and unequivocal, and also part performance, and that the acts done in performance were referable solely to the contract sought to be enforced and not such as might be referable to some other or different contract, and further that nonperformance by the other party would amount to a fraud upon the party seeking specific performance.
J. R Swenson, of Omaha, for appellants.
John A McKenzie, of Omaha, and Fred. S. Jack, of Tekamah, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an action by plaintiffs who are widow and children of one Elmer S. Anderson, deceased, against the defendants all of whom are children of Charles P. Anderson, deceased, except Josie Anderson who is the wife of Clarence A. Anderson, the purpose of which is to have quieted in plaintiffs title to the northwest quarter and the north half of the southwest quarter of Section 19, Township 22 North, Range 10 East, in Burt County, Nebraska, record title to an undivided one-half of which, up to July 1, 1938, the date of the death of Charles P. Anderson, resided in him and title to the other one-half in Elmer S. Anderson.
Trial was had to the court and a decree was entered granting the relief prayed by plaintiffs. A motion for new trial was filed and overruled. From the decree and the order overruling the motion for new trial the defendants have appealed.
There are numerous errors assigned as grounds for reversal. In order that they or such of them as are pertinent to a determination of this appeal may be properly considered it appears necessary to describe in some detail the issues as presented by the pleadings and the manner in which they were set out and also the family background in its changing aspects over a period of about 30 years before the commencement of this action which last date was June 20, 1947.
As to the family background, Charles P. Anderson was the father of Elmer S. Anderson, deceased, and of all the defendants herein except Josie Anderson. At the time of his death he was a resident of Burt County, Nebraska. He died intestate July 1, 1938, and his estate was probated in Burt County. Elmer S. Anderson was a resident of Burt County. He died intestate March 22, 1940, and his estate was probated also in Burt County. The plaintiffs are his heirs at law.
By warranty deed dated February 23, 1920, one Alfred Olson and Signe Olson, his wife, conveyed the land which has been described to the said Elmer S. Anderson and the said Charles P. Anderson for a stated consideration of $67,900, which deed was recorded on March 8, 1920. The record title remained thus except as it was affected by the two probate proceedings mentioned, the probate of the will of Caroline Anderson, widow of Charles P. Anderson, who died in 1946, and a deed from Clarence A. Anderson to Caroline Anderson, until the entry of decree in this case in the district court.
Plaintiffs as heirs of Elmer S. Anderson, deceased, filed the petition herein on June 20, 1947. The declared cause of action was based on a claim that they were entitled to have title quieted in them as heirs. They alleged that Elmer S. Anderson purchased the land by written contract dated May 23, 1919, pursuant to which by the warranty deed hereinbefore referred to the land was conveyed to Elmer S. Anderson and Charles P. Anderson. They alleged that Charles P. Anderson invested no money or property in the land and contributed nothing in payment or upkeep of the same; that he was never in possession; that he never claimed to be an owner; and that he had no interest therein save and except that he assisted in the purchase by loaning to Elmer S. Anderson certain funds which had long since been repaid.
On June 26, 1947, plaintiffs filed an amended petition which was in substance the same as the earlier one except that in this one was set out the contract of May 23, 1919, by which plaintiffs alleged that Elmer S. Anderson purchased the land.
On December 5, 1947, plaintiffs filed another amended petition and it was on this one that the cause was tried. In this petition the declarations as to the manner of acquisition and the place of repose of title were the same as those of the other two petitions, however the alleged basis upon which they claimed the right to have title quieted in them materially departed from the allegations of the other petitions.
In this last petition plaintiffs alleged that the name of Charles P. Anderson was placed in the deed from Alfred Olson and Signe Olson pursuant to an oral agreement between Charles P. Anderson and Elmer S. Anderson, which agreement provided that Charles P. Anderson was to loan to Elmer S. Anderson such sums of money as Elmer S. Anderson might desire to use in his business; that the deed was to be taken in the name of Charles P. Anderson as one of the grantees to secure the repayment of such sums; that Charles P. Anderson was to execute a deed to Elmer S. Anderson which should release of record the apparent interest of Charles P. Anderson; that such deed should be placed in escrow so that when Elmer S. Anderson had repaid all sums so advanced under the agreement the escrow holder would deliver said deed to Elmer S. Anderson thereby releasing of record all apparent interest of Charles P. Anderson; and that as a part of the agreement and pursuant thereto Charles P. Anderson did execute the deed which was to be placed in escrow.
They alleged that the oral agreement was made at the home of Elmer S. Anderson; that the date of the deed to be placed in escrow and the name of the escrow agent are unknown; and that the whereabouts of the deed is unknown and cannot be ascertained.
They further alleged that the exact amount of money advanced pursuant to the agreement is unknown but that it approximated $5,000, all of which had been repaid and that therefore and because thereof the defendants had no right, title, or interest in the land in question.
They further alleged that any right that the defendants had in the land has been barred by the statute of limitations.
While the foregoing is a summary of the pleaded cause of action of which plaintiffs went to trial the record discloses that in an important respect by their evidence they submitted it on a different theory. Instead of submitting it on the theory that Charles P. Anderson become a named grantee in the deed to secure the repayment of loans made by him to Elmer S. Anderson of money to use in his business they submitted it on the theory of security for repayment of the advancement of a part of the purchase price of the land. There is no competent evidence whatever tending to support a contention that the alleged oral contract had any relation whatever to anything except an advancement of a part of this purchase price.
The answer on which the case was submitted after generally denying the allegations of the petition set forth in effect, among other things not necessary to be repeated or summarized here, that Charles P. Anderson acquired an undivided one-half interest in this land by purchase thereof by reason of the fact that he furnished one-half of the consideration for the purchase and that he was the owner of such interest at the time of his death and further that Elmer S. Anderson and these defendants, except Josie Anderson, as heirs, together with certain devisees of Caroline Anderson, succeeded to the interest and all of the rights which he had at the time of his death.
The plaintiffs as a step in their effort to sustain their contentions sought to prove that in the first instance and on May 23, 1919, Elmer S. Anderson purchased this land by written contract from Alfred Olson. The only evidence offered in proof of this is what on its face purports to be a copy of a written contract, identified as exhibit No. 1, between Alfred Olson and Elmer S. Anderson. The exhibit is in nowise authenticated by any witness except that plaintiff Anna M. Anderson testified that it was a document kept among the papers of Elmer S. Anderson. She testified that the names of the purported contracting parties appended thereto were not their signatures. The exhibit was received in evidence over appropriate objection of the defendants. The ruling in this respect is presented here by assignment of error.
The district court admitted the exhibit not on the basis of proof of authenticity and upon identification by someone having knowledge of its execution but under the 'ancient...
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