Ballou v. Sherwood

• Decision Date: 15 September 1891
• Citation: 49 N.W. 790,32 Neb. 666
• Parties: BALLOU ET AL. v. SHERWOOD.
• Court: Nebraska Supreme Court

32 Neb. 666

49 N.W. 790

BALLOU ET AL.

v.SHERWOOD.

Supreme Court of Nebraska.

Sept. 15, 1891.

Syllabus by the Court.

1. The statute of frauds only requires the vendor to sign the contract, or memorandum thereof, for the sale of lands. Gartrell v. Stafford, 12 Neb. 545, 11 N. W. Rep. 732.

2. S. and B. entered into a contract for the exchange of certain real estate, and, in addition to the parcels to be conveyed by B., he also agreed to pay S. $25,000, in cash down, and deliver to him certain shares of stock of the Midland Guarantee & Trust Company. After the execution of the contract, S. stated to B. that he had negotiated a loan of $25,000 from C. upon the property agreed by the contract to be exchanged with and conveyed to B., but that the money had not been received nor the mortgage executed; and suggested, as B. had to make a loan of $25,000 under his contract with S., that he carry out the arrangement agreed upon for the loan between S. and C. This was agreed to by B. Upon consultation with C., he, being ready to advance the money, required the interest to run from that day; and, as the deeds could not be prepared and exchanged between B. and S. until a later day, by mutual consent, S. executed a mortgage to C., and received the $25,000 directly from him, as the cash payment of that sum on the contract for the sale and exchange of land with B. In an action by B. for the specific performance of the contract against S., held, that said transaction was no variance of the contract for the exchange of land; nor did proof of it tend to establish the contract by parol, but only to prove the performance of certain conditions of the contract,--the cash payment provided by it. MAXWELL, J., dissenting.

3. In a contract between E. H. S. on the one part, and O. H. S. and E. G. B. on the other part, for the exchange of one parcel or description of real property by S. for five parcels or descriptions of real property by the second party, in which the property to be exchanged by each party was described as follows: “E. H. S.'s barn and lot, 17th and Davenport. B.'s lot 2, B. 174. East half lot 5 and 6, B. 80, Omaha. Twenty acres adjoining Cote Brilliante, Douglas county. N. 1/2, B. 1, Ambler place. Lot 14, B. 5, and lot 11, B. 2, Boggs and Hill's addition, Omaha,”-- held, that each description of property to be exchanged by the parties, following the first description, is to be construed and read as B., the owner of the property, in the possessive case, at the commencement of each description. MAXWELL, J., dissenting.

4. O. H. B. and E. G. B. contracted in writing to convey real property by the description of “B.'s lot 14, B. 5, and lot 11, B. 2, Boggs and Hill's addition, Omaha.” Upon proof of two additions known as “Boggs and Hill's,” one of which was known as “Boggs and Hill's Second Addition;” that B.'s owned lot 14, in block 5, and lot 11, in block 2, in Boggs and Hill's second addition, but did not own or claim to own any lots or lot in the other addition,-- held, that the contract was not void under the statute of frauds; and held, also, that parol evidence was properly received to prove the ownership by the B.'s of lots answering the general description contained in the contract. MAXWELL, J., dissenting.

5. The several descriptions of real property to be exchanged by the B.'s, as set out in the contract copied in the statement, held sufficient to admit parol evidence of the correct description of the respective parcels intended. See Adams v. Thompson, (Neb.) 44 N. W. Rep. 74, and authorities there cited.

6. Where a party gives a reason for his decision and conduct touching anything involved in a controversy, he is estopped, after litigation has begun, from changing his ground, and putting his conduct on another and different consideration. Railway Co. v. McCarthy, 96 U. S. 258, and cases there cited.

7. Where plaintiffs claim title through their father, deceased, and it appears that the statute of limitations began to run against him during his life-time, his death and their minority do not arrest it, and, if it has run the full statutory period, the possession of the defendant being actual and adverse from the beginning, plaintiffs are barred of their right to recover. Hardy v. Riddle, 24 Neb. 670, 39 N. W. Rep. 841.

8. Open, notorious, exclusive, adverse possession of real estate, by one claiming to be the owner thereof, will give a perfect title thereto, as well for the purpose of enforcing the specific performance of a contract for the sale thereof as for all other purposes of ownership.

Appeal from district court, Douglas county; WALKELEY, Judge.

Petition by Otis H. Ballou and Everett G. Ballou against Edwin H. Sherwood for a specific performance. Judgment for defendant. Plaintiffs appeal. Reversed.Cowin & McHugh, William L. Browne, and O. H. Ballou, for appellants.

A. J. Poppleton and Lake & Hamilton, for appellee.

COBB, C. J.

The plaintiffs and appellants filed their amended and supplemental petition in the court below, alleging that on December 10, 1887, the defendantwas the owner in fee of lot 4, and the west one-third of lot 3, in block 77, in the city of Omaha. That at said date, and prior thereto, the plaintiffs were the owners in fee of lot 2, in block 174, and the E. 1/2 of lots 5 and 6, in block 80, in the city of Omaha. Also 20 acres of land adjoining Cote Brilliante an addition to the city of Omaha, and described as follows: Beginning at the S. W. corner of section 29, township 16, range 13 E., thence east 32 rods, thence north 66 2/3 rods; thence east 48 rods; thence north 13 1/3 rods; thence west 80 rods; thence south 80 rods, to the place of beginning,--being part of the S. W. 1/4 of the S. W. 1/4 of section 29, township 16 N., range 13 E., of sixth P. M. That the premises last described were well known to the defendant when the contract was entered into, as hereinafter stated, and he knew exactly the property designated in the agreement as such 20 acres, and as being the only property owned by plaintiffs at that place. Also the N. 1/2 of block 1, in Ambler place, an addition within the city limits of Omaha, and lot 14, in block 5, and lot 11, in block 2, in Boggs and Hill's second addition to the city of Omaha, described in the contract as “Boggs and Hill's Addition,” the word “second” being left out by mistake, but is the property contemplated and bargained for by defendant. The plaintiffs were also the owners of stock in the Midland Guarantee & Trust Company, a corporation organized under the laws of this state. That on December 10, 1887, said parties entered into a contract in writing, whereby it was agreed that the defendant should sell and convey to the plaintiffs the property described as belonging to him in consideration of $25,000 in cash, and $3,100 stock in the Midland Guarantee & Trust Company, and take the other property described as plaintiffs', as the balance of the consideration for the defendant's property agreed to be sold and exchanged, the consideration for which, described in said written contract, was $115,000. The amount to be paid by defendant for lot 2, in block 174, was $40,000, from which was to be deducted $14,500, the amount of a mortgage incumbrance assumed by defendant; the equity of the plaintiffs therein being valued by the parties at $25,000. The amount paid by defendant for the E. 1/2 of lots 5 and 6, in block 80, was $20,000, upon which there was a mortgage of $5,600 assumed by defendant; the equity of the plaintiffs being valued at $14,400, and agreed upon between the parties. The 20 acres described was taken at the agreed value of $12,000, the N. 1/2 of block 1, in Ambler place, at the agreed value of $20,000; the lots in Boggs and Hill's second addition at $17,100, upon which there was a mortgage of $2,100, the equity of the plaintiffs being valued at $15,000. All the property was taken by the defendant from plaintiffs subject to the incumbrances as aforesaid, the equities of the plaintiffs therein being calculated to make the sum of $115,000,--all of which agreement, bargain, and contract were entered into in writing between the parties thereto on December 10, 1887, copies of which are attached marked “A” and “B.” That on said date there was paid on said contract $2,000, a reasonable time being agreed upon between the parties to execute deeds, and complete the exchange and purchase. The plaintiffs proceeded immediately to perfect said contract, and executed warranty deeds of conveyance, excepting the incumbrances assumed by defendant, and subject to which the property was taken. That on the same day the contract, after being signed, was changed in this respect: The defendant had been negotiating for a loan, upon his property described, of $25,000; and, being notified that the money was ready, it was agreed that the defendant might make the loan, to be assumed by the plaintiffs, who would take the property subject to the amount of the loan in lieu of the payment of that amount in cash. The defendant thereupon executed a mortgage for $25,000 in favor of John D. Creighton, which was assumed by these plaintiffs. They further allege that they perfected all title to said property, and tendered deeds of conveyance therefor before the commencement of this suit, and are ready and willing to deliver the same, and have them in court for that purpose. They further allege that they tendered the stock aforesaid to the amount of $3,100, being at the rate of 50 per cent. of the par value of said stock, the same being $6,200, which they are now ready and willing to deliver to the defendant upon his performing his part of the agreement hereinbefore set forth. They further allege that, some question having arisen as to the title of the N. 1/2 of block 1, Ambler place, they proceeded at once to secure certain deeds perfecting said title beyond question, though such deeds were not necessary to make such title good. There were secured after the...