Asmus v. Longenecker

• Decision Date: 09 October 1936
• Docket Number: 29716
• Citation: 269 N.W. 117,131 Neb. 608
• Parties: JOHN ASMUS, JR., APPELLEE, v. J. F. LONGENECKER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

269 N.W. 117

131 Neb. 608

JOHN ASMUS, JR., APPELLEE, v. J. F. LONGENECKER ET AL., APPELLANTS

No. 29716

Supreme Court of Nebraska

October 9, 1936

APPEAL from the district court for Saline county: ROBERT M PROUDFIT, JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

" A valuable consideration may consist either in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other." Bouvier's Law Dictionary (Rawle's 3rd Rev.) p. 613.

Appeal from District Court, Saline County; Proudfit, Judge.

Action by John Asmus, Jr., against J. F. Longenecker, first and true name unknown, and another. Judgment for plaintiff, and defendants appeal.

Reversed.

Emil J. Eret and T. R. P. Stocker, for appellants.

Edward J. Kubat, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, PAINE and CARTER, JJ.

OPINION

GOOD, J.

Plaintiff sued to cancel a deed to a farm executed by him and his wife; also to have the deed declared a mortgage. The grounds alleged for cancelation of the deed were that it was not acknowledged, as required by law, and that it was obtained by fraud, and without consideration. Defendants admitted the execution of the deed and denied the other allegations of the petition. The trial resulted in a decree canceling the deed, on the ground of lack of consideration. Defendants have appealed.

The record discloses the following facts: Early in January, 1933, plaintiff was the owner of a farm in Saline county, consisting of approximately 200 acres. The farm was encumbered by a mortgage for $ 11,000 and delinquent taxes for several years. Plaintiff was in default in the payment of interest on the mortgage, and an action for foreclosure was then pending. Plaintiff and defendant Longenecker entered into an agreement whereby plaintiff and his wife were to convey the farm in question to Longenecker, who in turn would lease the premises to the plaintiff for a period of five years, without the payment of rent. They visited an attorney's office and had a deed drawn from plaintiff to defendant Mayland and a lease of the premises by defendant Longenecker to plaintiff for a period of five years, ending March 1, 1938. The lease also contained an option that on or before March 1, 1938, plaintiff might repurchase an 80-acre tract, on which were located the buildings and improvements, upon payment of the sum of $ 10,000. Defendant Mayland on the same day executed a deed to the premises to defendant Longenecker. Apparently, Mayland was simply used as a conduit for conveying the title from plaintiff to defendant Longenecker. The deeds were executed on the 5th day of January, 1933. On the 3d day of February following, the foreclosure action was dismissed and has not been recommenced.

In his petition plaintiff avers that Longenecker had acquired ownership of the note or bonds secured by the mortgage. The evidence upon this point indicates that Longenecker and his friends owned or controlled the bonds, or a part thereof at least, that were secured by the mortgage. The allegation that the deed was void for fraud and was improperly executed finds no support in the record, and the district court so found. Plaintiff's positions in his petition are inconsistent. In one part he alleges that the deed was intended as a mortgage and...