Betts v. Sims

• Decision Date: 14 December 1888
• Parties: BETTS ET AL. v. SIMS.
• Court: Nebraska Supreme Court

25 Neb. 166

41 N.W. 117

BETTS ET AL.

v.SIMS.

Supreme Court of Nebraska.

Dec. 14, 1888.

Syllabus by the Court.

1. The title to a homestead, exempt under the laws of this state to a family consisting of a husband and wife, with or without other members, cannot be divested or incumbered by deed, unless such deed be executed and acknowledged by both husband and wife. See Aultman v. Jenkins, 19 Neb. 209, 27 N. W. Rep. 117;Bonorden v. Kriz, 13 Neb. 121, 12 N. W. Rep. 831;Larson v. Butts, 22 Neb. 370, 35 N. W. Rep. 190.¹

2. Evidence relied on to estop a wife, the second head of a family, to deny the validity of the title of a purchaser of her exempt homestead by conveyances which she did not execute and acknowledge, examined and held insufficient to establish an estoppel.

Appeal from district court, Saline county; NORVAL, Judge.

Action in the nature of quia timet by George Betts and others against F. L. Sims, to quiet title to certain land. Judgment in favor of defendant, and plaintiffs appeal.R. Wheeler and Hall & McCulloch, for plaintiffs in error.

Hastings & McGintie, for defendant in error.

COBB, J.

This was an action in the nature of quia timet, brought in the district court of Saline county, by the plaintiffs, for the purpose of removing certain clouds from, and quieting the title in themselves to, a certain quarter section of land in said county. The petition alleges that the said land was entered by their son, William H. Betts, under the homestead laws of the United States, but that before he had perfected his title thereto he died, unmarried, and without issue; that upon his death they entered into the possession of the same, and occupied and improved the same in full compliance with the laws of the United States, so that on or about the 28th day of March, 1877, a patent duly issued to them, as the heirs of said William H. Betts, to and for said land, by the president of the United States; that they continued to reside upon and occupy said land as a homestead, under the laws of this state, until on or about the month of September, 1881, when they were wrongfully, and without process of law, ejected therefrom by one Joseph Brown, who claimed title to said land; that on the 29th day of August, 1878, the plaintiff George Betts was induced to execute and deliver to one George W. Bentley a quitclaim deed to said tract of land without any consideration whatever; that at the time he executed said quitclaim deed he was a married man, and the head of a family; that his wife, the said Eliza Betts, was then living with him upon said land, and occupying it jointly with him as a homestead; that she is still living, and that she has not at any time, signed or executed said deed, or any deed or conveyance of or to said land; that at the time said George Betts executed said quitclaim deed of said land the value thereof was less than $2,000; that neither of said plaintiffs owned or occupied any other real estate of any kind, etc.; that they continued to reside thereon, and at all times occupy the said land, after the execution of said quitclaim deed, until the time when they were forcibly ejected therefrom, as before stated; that since the execution of said quitclaim deed, by divers and sundry conveyances from said George W. Bentley, the defendant, F. L. Sims, claims the title to said premises under and by virtue of the pretended title, derived through and under the quitclaim deed to said George W. Bentley, so as aforesaid made and executed, and is now in possession of the said premises, and holds and occupies the same without just title thereto, etc.; that by reason of the execution of the said quitclaim deed by said George Betts, and the execution of the sundry mesne conveyances thereunder, all of which conveyances have been filed and recorded upon the deed records of said Saline county, the legal title in and to said land appears upon the records to be vested in the said F. L. Sims, defendant, and thereby a cloud is thrown upon the title of the plaintiffs, which cannot be removed by an action at law, etc.; that said George Betts has duly and lawfully rescinded and disowned the execution of the said quitclaim deed upon his part, etc., with a prayer for judgment, etc. The defendant made an amended answer, which is lengthy and exhaustive, and as the court in its decree passed on all the issues presented thereby, and as it will be necessary to set out the decree at length in this opinion, the answer, as such, will not be exemplified. The plaintiffs having replied to the answer, there was a trial to the court, with findings and a decree for the defendant. The plaintiffs bring the cause to this court by appeal, at least that is the supposition, as no petition in error is to be found with the papers, though counsel of either side designate it as a case of error in their briefs. I here copy the decree at length:

“(1) The cause came on for hearing, a jury being waived, and, after hearing the evidence and arguments of counsel, and being fully advised in the premises, the court do find on the issues joined in favor of the defendant, and against the plaintiff. (2) The court further finds that the United States, on the 25th day of July, 1876, issued a patent to the heirs of one William H. Betts, deceased, to the land in controversy, to-wit: The southeast quarter of section 8, of township 8, north of range one east, the final receiver's receipt for said land having been issued July 15, 1876. And at that time the plaintiff George Betts was the sole heir of William H. Betts, deceased; that plaintiffs then were, and now are, husband and wife, and from that date until about September, 1880, said plaintiffs resided upon, used, and occupied said land as their homestead. (3) On the 15th of July, 1876, said plaintiffs mortgaged said real estate to the New England Mortgage Security Company, to secure the sum of $600, borrowed money, with ten per cent. interest from date thereof, payable annually, and due July 1, 1881, both plaintiffs signing and acknowledging said mortgage. (4) That on the 1st day of October, 1877, said plaintiffs mortgaged said real estate to one R. S. Bentley to secure the sum of $500, borrowed money, with twelve per cent. interest thereon, and due October 1, 1878, both plaintiffs signing and acknowledging said mortgage. (5) On the 29th day of August, 1878, said George Betts, with the knowlege and consent of his wife, Eliza, executed and acknowledged a quitclaim deed to said real estate to one George W. Bentley, which was made without consideration, and for the purpose of placing said real estate beyond the reach of the creditors of said George Betts. (6) Some time after the last-mentioned date both George and Eliza Betts went to said R. S. Bentley, and applied to him to borrow some more money on said land, thus agreeing to procure a deed to be made by said George W. Bentley to said R. S. Bentley to said real estate, as security for said note, and said R. S. Bentley then loaned to plaintiffs, on said land, about $1,300, a portion of which said sum was applied on payment of the $500 mortgaged mentioned in finding 4 hereof. To secure said sum of $1,300 said plaintiffs caused, requested, and procured said George W. Bentley to convey to said R. S. Bentley said real estate by warranty deed, March 18, 1879, which deed was duly recorded, and in said deed said R. S. Bentley assumed the payment of all liens and incumbrances on or against said land, and at that time said R. S. Bentley gave said Betts a bond for a deed to convey the land back to said Betts, on Betts paying said sum of money. (7) On the 8th day of March, 1880, said R. S. Bentley entered into a written contract to lease said premises to said George Betts for the period of one year, said lease being signed by said Bentley and Betts, and was duly recorded on the records of Saline county, Neb., May 13, 1880, and plaintiffs occupied said premises, and paid said Bentley rent, as in said lease provided. (8) On the 23d day of September, 1880, plaintiffs were indebted to one Joseph Brown for about four years' wages, and as payment therefor both plaintiffs agreed with said Brown to have said R. S. Bentley and wife convey said real estate to said Brown, the said Brown agreeing to pay off said mortgage given by said plaintiffs to the New England Mortgage Security Company, and also to pay the balance remaining due from the plaintiffs to R. S. Bentley, secured by the deed from George W. to R. S. Bentley. On the said 23d day of September, 1880, said Betts surrendered to said Bentley said bond for a deed or defeasance, and by agreement of said Bentley said bond or defeasance was by them destroyed and canceled, and the said R. S. Bentley agreed with the plaintiffs to convey said real estate to said Brown. At the earnest solicitation and request of, and with the full knowledge and consent of, both of said plaintiffs, said R. S. Bentley and his wife conveyed, September 23, 1880, by warranty deed, said land to said Brown, in payment of the indebtedness of plaintiffs to Brown; and the said Brown then borrowed of one Charles Bidleman $1,150, at 8 per cent. interest, and said Brown executed, acknowledged, and delivered to said Bidleman a mortgage on said land to secure said sum; that said Brown, on said last-named date, paid to said R. S. Bentley, out of said $1,150 so borrowed as aforesaid, the balance then due said Bentley from Betts, and with the remainder of said $1,150 he then paid off said $600 mortgage, given by plaintiffs to the New England Mortgage Security Company. The deed from Bentley and wife to Brown, and the said mortgage from Brown to Bidleman, were each duly recorded in the county clerk's office of said Saline county on September 24, 1880. (9) The court further found the said Brown and plaintiffs all resided upon said land from said last-named date until some time during the fall of 1881, when plaintiffs moved off of said land, and took up their...