Bankers Life Ins. Co. v. Ohrt
| Decision Date | 23 December 1936 |
| Docket Number | No. 29767.,29767. |
| Citation | 131 Neb. 858,270 N.W. 497 |
| Parties | BANKERS LIFE INS. CO. v. OHRT ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Where it is clearly shown that an attorney improvidently and by mistake made an admission against his client's interest, the court, in its discretion, may allow the admission to be withdrawn during the trial, where it does not prejudice the right of the adverse party to offer evidence on the point.
2. Where a stipulation in a deed binds the grantee to pay to the grantor a fixed sum each year during life, the grantee's liability thereon becomes a lien on the real estate for payments due and to become due.
3. Oral testimony as to conversations in 1919 and 1920, designed to modify a written contract previously made in 1919, is not admissible in a trial of an action begun in 1935.
4. “The provision of the Code, that the plaintiff shall state in his petition whether any proceedings had been had at law for the recovery of the debt, or any part thereof, applies alone to formal mortgages, and not to mortgages or liens arising out of the equities between the parties.” Dimick v. Grand Island Banking Co., 37 Neb. 394, 55 N.W. 1066.
5. Oliver v. Lansing, 59 Neb. 219, 80 N.W. 829.
6. Lawn-fence, light-plant, and hot-air furnace held to be a part of the mortgaged real estate.
Appeal from District Court, Douglas County; Dineen, Judge.
Suit by the Bankers Life Insurance Company against Minna Ohrt and others, impleaded with Rosa Oft and the Bank of Bennington, Bennington, Neb., wherein Rosa Oft filed a cross-petition. From the judgment, defendants Minna Ohrt and others appeal.
Affirmed.
Robins & Yost, of Fremont, for appellants.
Wm. C. Ramsey and Sherman Welpton Jr., both of Omaha, and C. Petrus Peterson, of Lincoln, for appellee Bankers Life Ins. Co.
John A. McKenzie and Amos E. & T. F. Henely, all of Omaha, for appellees Rosa Oft et al.
Heard before GOSS, C. J., GOOD, EBERLY, DAY, and CARTER, JJ., and MESSMORE, District Judge.
Defendants Minna Ohrt, George Ohrt, Eggert J. Ohrt and Nancy Ohrt appeal from a decree of foreclosure.
Plaintiff foreclosed a mortgage on land owned and mortgaged to it by Minna Ohrt and husband, George Ohrt. Minna Ohrt had originally acquired this land from her father and mother, Eggert Oft and Rosa Oft, by warranty deed dated February 8, 1919, which contained the following covenant or condition:
“Subject to the following stipulation: Grantee herein agrees to pay to the grantors, so long as either one may live, $500, on the first day of September each and every year, this being a part of the consideration for the purchase of said land.”
Eggert Oft had died on March 1, 1931. So when plaintiff took the note and mortgage it required Rosa Oft to join the Ohrts in their execution.
Rosa Oft cross-petitioned to preserve her lien upon the land subject only to plaintiff's prior mortgage lien, which she conceded to be such.
Bank of Bennington set up a note and mortgage subject to plaintiff's mortgage but not conceding that it was subject to Rosa Oft's claim.
Minna Ohrt and George Ohrt pleaded that, when the deed to this land was made in favor of Minna Ohrt by the Ofts on February 8, 1919, it was really made in consideration of services of their daughter Minna to her father and mother for a series of years from 1896 to 1901; and that at the time of the transfer it was orally agreed by the Ofts and their daughter Minna that the payment of the $500 each year, starting September 1, 1919, was conditioned (1) upon the land producing that much each year above the cost of production, and conditioned (2) upon the necessity of the Ofts of that sum for their support and maintenance, and was conditioned further (3) upon the oral agreement that, in case of such necessity, the Ofts would require each of the children (three others of whom had like contracts with their parents) to prorate the necessary sum for the maintenance of their father and mother so that “one would not be required to pay more than the other.” The answer of Minna and George Ohrt further pleads an oral agreement made June 19, 1919, with Rosa Oft and her husband, Eggert, in which it was agreed by the Ofts, as owners of certain lots improved by a two-story building, that if Minna and her three sisters, with their husbands, would furnish the money to improve the building, at an estimated cost of something over $3,000, the said Minna and her sisters should each receive one-fourth of the income from said property thereafter and upon the death of their parents should receive the property; that Minna Ohrt and George Ohrt, pursuant to that agreement, paid out as their share of such improvement in 1919 and 1920 a total of $937.38; that, shortly after the daughters improved the premises, the Ofts placed Roy Gordon, husband of Nancy Gordon, their youngest daughter, in charge of the operation of the premises and ever since he has continued to do a large and lucrative business in said property for the Ofts and, since the death of Eggert Oft, for Rosa Oft; that Rosa Oft has conveyed said property to Nancy Gordon in consideration of one dollar and love and affection; that Minna and George are entitled to an accounting for the profits of said premises from June, 1919, or, in lieu thereof, to the $937.38, with interest from the date of their payments.
Further, the Ohrts alleged that in May, 1920, Minna and her sisters learned that Eggert Oft had become indebted to the Bank of Bennington in excess of $9,000 and orally agreed with the Ofts that each of them would share equally in the payment of that debt of the parent on the condition that their payments would be credited on account of their annual payments on their respective farms at any time it was not convenient for them to make the annual payments; that Minna and her husband contributed $2,554.75 to Eggert Oft on May 22, 1920, which was used to pay the debt to the bank, have made all annual $500 payments in cash on the contract in the deed of February 8, 1919, up to and including all of the 1931 payment and paid $20 on 1932 payment on June 23, 1933, and are entitled to all payments made by them as credits on the balance of the 1932 annual payment and subsequent thereto.
Eggert J. Ohrt and Nancy Ohrt answered that they are tenants from year to year and that they have the right to remove certain property upon termination of their lease, viz.: Lawn-fence, Westinghouse light-plant with wiring and fixtures, galvanized steel grain-bin, one frame hog-house, two brooder-houses, 160 rods of hog-wire and posts and one Nesbit hotair furnace.
The decree allowed plaintiff's lien as a first lien; found that the lawn-fence, including steel posts and gates, the Westinghouse light-plant with wiring and fixtures, and the Nesbit hot-air furnace, claimed by Eggert J. Ohrt and Nancy Ohrt, were affixed to and a part of the real estate; that the condition of the deed from Eggert Oft and Rosa Oft to Minna Ohrt created a lien on the land for a $500 charge each year, and Minnie Ohrt, by allowing the mortgage to become delinquent, had jeopardized her mother's lien; that the present worth of that lien is $4,055, and Rosa Oft is entitled to a foreclosure thereof subject to plaintiff's first lien; that the Bank of Bennington is entitled to a lien and foreclosure thereof subject to the preceding named liens; and that the grainbin, the hog-house, two brooder-houses and 160 rods of hog-wire and posts are the personal property of Eggert J. Ohrt. Decree was entered accordingly.
[1][2] The first error assigned by the four appellants is that Rosa Oft was released as a joint...
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