Bellamy v. Chambers

• Decision Date: 07 January 1897
• Docket Number: 6932
• Citation: 69 N.W. 770,50 Neb. 146
• Parties: RICHARD H. BELLAMY v. JONAS E. CHAMBERS
• Court: Nebraska Supreme Court

69 N.W. 770

50 Neb. 146

RICHARD H. BELLAMY v. JONAS E. CHAMBERS

No. 6932

Supreme Court of Nebraska

January 7, 1897

ERROR from the district court of Gosper county. Tried below before WELTY, J. Affirmed.

AFFIRMED.

W. S Morlan, for plaintiff in error.

W. B Miller, contra.

OPINION

HARRISON, J.

On July 10, 1893, the plaintiff commenced this action in the county court of Gosper county to recover the sum of $ 29.91 and interest as prayed for in his bill of particulars. The cause of action was based upon a breach of covenant against incumbrances contained in a deed of a certain described tract of land, executed and delivered by defendant to plaintiff, of date December 16, 1886, wherein there appeared a covenant by which it was warranted that, except a mortgage lien specifically stated, the premises conveyed were "free from incumbrance," etc. The breach was stated in the bill of particulars as follows: "Said premises were not free from incumbrance at the time of the execution of said deed, but were incumbered by the taxes which had been lawfully assessed against them for the year 1886, to the amount of $ 20 and accrued interest. The plaintiff was compelled to remove said incumbrance, and paid $ 29.91 to remove the same, of all which the defendant had due notice. Said sum was paid June 27, 1890." A trial in the county court resulted in a judgment favorable to defendant, from which an appeal to the district court was perfected on behalf of plaintiff. In the petition filed in the appellate court there appeared the following:

"The taxes assessed and levied against said land for the year 1886, amounting to the sum of $ 20, had not been paid, and at the time of said conveyance were a lien and incumbrance on said tract of land, and after the same became due, to-wit, about the 1st day of May, 1887, the plaintiff requested the defendant to pay the same and comply with the terms of covenants and warranty in said deed first mentioned; thereupon the defendant then requested the plaintiff to pay said taxes to the treasurer of Gosper county, Nebraska, and promised to repay the amount so to be advanced by this plaintiff necessary to pay said taxes and remove said incumbrance.

"4. In compliance with the said request of the defendant, and relying on the said promises of the said defendant, and for the purpose of preventing the said land from being conveyed by tax deed, this plaintiff, on the 27th day of June, 1890, paid to the treasurer of Gosper county, Nebraska, the delinquent taxes on the above described tract for the year 1886, which, with accrued interest, at that time amounted to the sum of $ 29.91, said amount then being the amount necessary to pay in order to discharge said tract of land from the incumbrance thereon by reason of said taxes.

"5. No part of the said sum of money has been repaid by the defendant, and there is now due from the defendant to the plaintiff, for said taxes so paid, the sum of $ 29.91, with interest from the 27th day of June, 1890."

For the defendant there was presented the following motion "Comes now the defendant in the above entitled cause, and moves the court for a rule on the plaintiff that he be made to strike out from his petition in this court, filed December 8, 1893, all that portion of allegation number three (3) commencing 'The plaintiff requested the defendant to pay the same and comply with the terms of covenants and warranty in said deed first mentioned; thereupon the defendant then requested the plaintiff to pay said taxes to the treasurer of Gosper county, Nebraska, and promised to repay the amount so to be advanced by this plaintiff necessary to pay said taxes and remove said incumbrance;' also to strike out therefrom all of allegation No. 4, reading as follows: 'In compliance with said request of the defendant, and relying on the said promises of said defendant;' and also that part of allegation No. 5, as follows, reading 'No part of the said sum of money has been repaid by the defendant,' for the reason that the issues in the court below, where this cause was tried, and from which it was appealed, did not include the matter set up in said petition, nor was the trial upon the said matter so set out, and the issues involved in said petition would not be the issues in the lower co...