Bigler v. Baker

• Decision Date: 02 May 1894
• Docket Number: 5617
• Citation: 58 N.W. 1026,40 Neb. 325
• Parties: JACOB BIGLER, EXECUTOR, v. JAMES A. BAKER
• Court: Nebraska Supreme Court

58 N.W. 1026

40 Neb. 325

JACOB BIGLER, EXECUTOR, v. JAMES A. BAKER

No. 5617

Supreme Court of Nebraska

May 2, 1894

ERROR from the district court of Lancaster county. Tried below before TIBBETS, J.

AFFIRMED.

Pound & Burr, for plaintiff in error:

To entitle a defendant to have default and judgment set aside he must furnish not only satisfactory reasons in excuse for his default, but he must accompany his motion by his proposed answer, duly verified, so that the court may see whether he has a defense to the action. (Spencer v. Thistle, 13 Neb. 227; Hale v. Bender, 13 Neb. 66; Mulhollan v Scoggin, 8 Neb. 202.)

When one writes the name of another to an instrument in his presence and at his request, the act of writing is regarded as the party's personal act as much as if he had held the pen and signed the instrument with his own hand. (Wood v Goodridge, 6 Cush. [Mass.], 120; Gardner v. Gardner 5 Cush. [Mass.], 483; Jansen v. McCahill, 22 Cal. 565; Story, Agency, sec. 51; Ball v. Dunsterville, 4 T. R. [Eng.], 313.)

The contract is void for want of mutuality. (Pomeroy, Contracts, sec. 162; Fry, Specific Performance, 286; Jacobs v. Peterborough & S. R. Co., 8 Cush. [Mass.], 224; Maynard v. Brown, 41 Mich. 298; Irwin v. Bailehy, 72 Ala. 467; Sturgis v. Galindo, 59 Cal. 28; Bodine v. Glading, 21 Pa. St., 53; Ballou v. March, 133 Pa. St., 64.)

The mere fact that a person has made a contract for the purchase of land does not entitle him to enter upon and hold it, and a purchaser's possession so obtained, in the absence of some agreement permitting him to enter, would be unauthorized and unlawful. (Williams v. Forbes, 47 Ill. 148; Dean v. Comstock, 32 Ill. 173; Burnett v. Caldwell, 9 Wall. [U.S.], 290; Carlisle v. Breman, 67 Ind. 12.)

If the defendant was in possession under a lease at the time the contract of sale was made, his possession after that time must be referred to the original tenancy and not to the contract of sale. (Mahana v. Blunt, 20 Iowa 142; Rosenthal v. Freeburger, 26 Md. 75; Wills v. Stradling, 3 Ves. [Eng.], 378; Jacobs v. Peterborough & S. R. Co., 8 Cush. [Mass.], 224.)

Ratification and estoppel, to be available, must be pleaded. (Cravens v. Gillilan, 73 Mo. 529; Noble v. Blount, 77 Mo. 235; Bray v. Marshall, 75 Mo. 327; Burlington & M. R. R. Co. v. Harris, 8 Neb. 140; Maxwell v. Longenecker, 89 Ill. 102; Anderson v. Hubbell, 93 Ind. 570; Robbins v. Magee, 76 Ind. 381; Sims v. City of Frankfort, 79 Ind. 452; Ragan v. Chenault, 78 Ky. 545; Pollard v. Gibbs, 55 Ga. 45; Wilson v. Butler, 33 Eng. Com. Law, 956.)

Holmes, Cornish & Lamb and R. J. Greene, contra:

The court was not in error in setting aside default and giving defendant permission to answer. (Mulhollan v. Scoggin, 8 Neb. 202.)

Under a general denial in the answer the defendant may prove any fact which negatives the plaintiff's right to the possession. (Dale v. Hunneman, 12 Neb. 221; Rowe v. Beckett, 30 Ind. 160; Stehman v. Crull, 26 Ind. 436; Wicks v. Smith, 18 Kan. 508; Warren v. Crew, 22 Iowa 315; Sparrow v. Rhoades, 9 Am. St. Rep. [Cal.], 197; Kimball v. Gearhart, 12 Cal. 50; Bell v. Brown, 22 Cal. 672; Wilson v. Cleaveland, 30 Cal. 201; Bell v. Bed Rock Tunnel & Mining Co., 36 Cal. 219; Semple v. Cook, 50 Cal. 29; Crary v. Goodman, 12 N.Y. 266; Traphagen v. Traphagen, 40 Barb. [N. Y.], 537; Tibeau v. Tibeau, 19 Mo. 78; Hayden v. Stewart, 27 Mo. 286; Cadiz v. Majors, 33 Cal. 288; Warren v. Crew, 22 Iowa 315.)

The contract was not void for want of mutuality. (Pomeroy, Contracts, secs. 164, 165; Walker v. Eastern Counties R. Co., 6 Hare [Eng. Ch.], 594*; Dalzell v. Crawford, 1 Pa. L. J. Rep. , 155.)

When the contract makes no mention of the possession and the land is vacant, and the vendee has paid the entire consideration and fully performed on his part, and the delivery of the deed is all that remains to be done, there is an implied agreement or license that the vendee may at once take possession and have the use of the land. (Sherman v. Savery, 2 McCrary [U. S. C. C.], 118; Miller v. Ball, 64 N.Y. 293; Suffern v. Townsend, 9 Johns. [N. Y.], 35.)

Tender is equivalent to payment. (Gaven v. Hagen, 15 Cal. 208; Henry v. Raiman, 25 Pa. St., 354.)

In ejectment by the vendor to recover the land the vendee can defend or protect his possession by showing a performance on his part, or that he is not in default. (Pierce v. Tuttle, 53 Barb. [N. Y.], 155.)

Mr. C. C. Burr, now being the owner of the land, is, by the law of estoppel, precluded from asserting title superior to that of the defendant in error. (Griswold v. Haven, 25 N.Y. 595; Smith v. McNeal, 68 Pa. St., 164; McKelvy v. Truby, 4 Watts & Serg. [Pa.], 323; Sherrill v. Sherrill, 73 N. Car., 8.)

OPINION

The facts are stated in the opinion.

POST, J.

This was an action by James E. Jones in the district court of Lancaster county to recover possession of a part of the northwest quarter of section No. 14, township No. 10, range No. 6, in said county, which is fully described in the pleadings, but which does not call for a more specific description in this opinion. At the September, 1890, term of the district court the defendant in error, who was the defendant below, being in default, judgment was entered in favor of the plaintiff in accordance with the prayer of his petition. Three days later, and presumably at the same term the defendant filed a motion, supported by affidavit, for the vacation of said judgment, which motion was, at the November, 1890, term, sustained and leave given the defendant to answer, which he did four days later, to-wit, on the 15th day of December. At the September, 1891, term a trial was had, resulting in a finding and judgment for the plaintiff, which was, on the motion of the defendant, set aside and the cause continued. At the February, 1892, term the defendant, by leave of court, filed an amended answer, to which a reply was in due time filed and a trial had, resulting in a verdict and judgment for the defendant, which we are now asked to review upon petition in error. Subsequent to the filing of the petition in error, Jones died, whereupon the action was revived in the name of the plaintiff in error, his executor.

The errors alleged are: 1. The court erred in vacating the judgment by default. In this connection it is argued that the grounds stated in the affidavit accompanying the motion were not sufficient to excuse the default, and that the motion should have been accompanied by the proposed answer. The affidavit referred to is as follows:

"R. D. Stearns, being first duly sworn, on oath says that he is attorney for said defendant in the above entitled cause, and has been for the last two years or more; that at the commencement of the September, A. D. 1890, term of the district court affiant spoke to L. C. Burr, one of the attorneys of record in the above cause, and informed him, said Burr, that he, affiant, was attorney for defendant, and told him, said Burr, that he, affiant, was very busy with the criminal docket, and asked said Burr if it made any difference if said answer was not filed for a while, and said Burr said, 'No, it didn't make any difference;' that he would take no advantage of it, as the case could not be tried anyhow this term; that within a day or so affiant prepared an answer to plaintiff's petition, except the attaching of a copy of a contract, which defendant desired to make a part of his answer, and which said contract had been mislaid and defendant was unable to find at that time, and the filing of the answer was thereby delayed. Affiant says he was entirely misled by Attorney L. C. Burr in the matter. He had no idea the case could possibly be reached, a jury case, No. 309 on the docket. This said case is one in ejectment, affecting the title to valuable land which defendant claims to be entitled to; that defendant has been a resident of this land some four or five years; has put valuable and lasting improvements upon said land, such as dwelling house, farm corrals, windmills, fences, etc.; that he has a good and valid defense to the claims made by plaintiff in his petition. In any event defendant is an occupying claimant and is entitled to compensation for his valuable and permanent improvements placed upon said lands. Wherefore defendant asks to have said judgment opened up and defendant allowed to come in and defend, and defendant now asks leave to file his answer setting out his defense.

"R. D. STEARNS.

"Subscribed in my presence and sworn to before me this 27th day of October, 1890.

J. D. HARRIS,

"Deputy Clerk District Court."

It is not claimed for this affidavit that the showing therein is in all respects such as good practice requires. For instance, the defense must be inferred from the conclusions of the affiant rather than the facts alleged. But the vacation during the same term, of judgments by default, is so largely a matter of discretion for the trial court that this court will decline to interfere unless there appears to have been a clear abuse of discretion. (Mulhollan v. Scoggin, 8 Neb. 202.) It may be said also that good practice requires the motion to be accompanied by the proposed answer in order that it may be determined whether there is a sufficient defense to the action. When, however, the court has resolved that question in favor of the moving party upon the evidence in the motion and affidavits and an answer subsequently filed and trial had, a stronger showing of abuse of discretion will be required than where a trial on the merits has been denied. (Westphal v. Clark, 46 Iowa 262.)

2. It is argued that the court erred in admitting in evidence the written agreement upon which the defense rests. In this connection it is deemed proper to set out the material allegations of the answer,...