Bigler v. Baker

Decision Date02 May 1894
Citation58 N.W. 1026,40 Neb. 325
CourtNebraska Supreme Court


Syllabus by the Court.

1. The vacation of a judgment by default during the term at which it is rendered is largely within the discretion of the trial court, and presents no grounds for reversal, unless there appears to have been a clear abuse of discretion.

2. This court will require a stronger showing of abuse of discretion where the motion to vacate is allowed than in cases where a trial on the merits is denied.

3. Want of mutuality is no defense, even in an action for specific performance, where the party not bound thereby has performed all of the conditions of the contract, and brought himself clearly within the terms thereof.

4. The plaintiff, in an action of ejectment, must rely upon the strength of his own title, and not upon the weakness of that shown by the adversary.

5. Continued possession by a tenant is not such a part performance of a verbal contract for the purchase of land as to take the case out of the statute of frauds. Possession, to have such an effect, must be clearly shown to refer to and result from the contract, and not the lease.

6. An averment that an agent was duly authorized is sustained by proof of subsequent ratification by his principal.

7. The deed of an agent, executed in the presence and under the personal direction of his principal, is not within our statute of frauds, and is not void for the reason that the execution thereof was not authorized in writing.

8. When the vendor in a parol agreement for the sale of land puts the purchaser in possession, and the latter, while holding under such agreement, makes lasting and valuable improvements upon the premises, such facts amount to a performance of the contract by him, and are a sufficient defense in an action of ejectment by the vendor, notwithstanding default of payment for the land.

Error to district court, Lancaster county; Tibbets, Judge.

Ejectment by James E. Jones against James A. Baker. Jones died, and one Bigler, his executor, was substituted as plaintiff. Judgment for defendant, and plaintiff brings error. Affirmed.Pound & Burr, for plaintiff in error.

Holmes, Cornish & Lamb and R. J. Greene, for defendant in error.


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 alleged errors 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 C. 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 C. 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 27 day of Oct., 1890. J. D. Harris, Deputy Clerk Dist. 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. Where, 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, which, after a general denial, are as follows:

“Further answering, this defendant alleges that he is in possession of the premises described in plaintiff's petition, and has been since the 25th day of May, 1886, by virtue of a certain written agreement given by the plaintiff through his authorized agent, C. C. Burr, which agreement was in words and figures as follows, to wit: Law Office of Carlos C. Burr. Lincoln, Nebraska, May 25, 1886. In consideration that James A. Baker shall pay me $300 on June 1, 1887, execute a mortgage and notes to me aggregating $1,900, as follows: $200, due June 1, 1888; $200, due June 1, 1889; $200, due June 1, 1890; $200, due June 1, 1891; $300, due June 1, 1892; $400, due June 1, 1893; $400, due June 1, 1894,--with interest at six per cent. per annum from June 1, 1887, I agree to convey to him, by quitclaim deed, the undivided (2/3 of S. 1/2 N. W. 1/4) two-thirds of the south half of the northwest quarter, 14--10--6. [Signed] Jas. E. Jones, by C. C. Burr, Agt.’ Which said agreement was duly filed for record in the office of the county clerk for Lancaster county, Nebraska, on the 25th day of May, 1886; being same land described in petition; interest having been apportioned in partition. Defendant further alleges that since entering in and upon the said described premises by virtue of said contract of sale, as aforesaid, he has made lasting and permanent and valuable improvements on said premises, of the value of $10,000. Defendant further alleges that he has performed all of the terms and conditions of said written contract upon his part to be performed, and upon the 1st day of June, 1887, this defendant tendered to C. C. Burr, the agent as aforesaid, $100 lawful money of the United States, and at the same time made known his willingness and intentions to execute the notes and mortgage as provided in said written agreement, and that afterwards, and from time to time, the said defendant has made tender of all the money due and owing upon said written agreement to the said plaintiff, which tender has been refused; and the said defendant now brings into court the full sum of money due upon said contract, together with all accrued interest thereon, and makes tender for the same in open court. And defendant avers that, at all times since the making of said memorandum or agreement, this defendant has been ready and willing to pay the several sums of money as they became due, from time to time, and has made tender of the same, either to the plaintiff, or to his agent.” The ground of the objection to the agreement is that, according to the testimony of the defendant, it was made with the plaintiff, and not with Burr, as agent, and that the only...

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    ... ... court has been completed before he institutes his suit ... Burnell v. Bradbury, 67 Kan. 762, 764, 74 P. 279; ... Bigler v. Baker, 40 Neb. 325, 333, 334, 58 N.W ... 1026, 24 L.R.A. 255; Green v. Richards, 23 N.J.Eq ... 32, 35; Boyd v. Brown, 47 W.Va. 238, 249, ... ...
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    ... ... Wilcox, 17 Neb. 46, 22 N.W. 71; Harris v ... State, 24 Neb. 803, 40 N.W. 317; Symns v ... Noxon, 29 Neb. 404, 45 N.W. 680; Bigler v ... Baker, 40 Neb. 325, 58 N.W. 1026; Bradley v ... Slater, 55 Neb. 334, 75 N.W. 826; Young v. Estate of ... Young, 103 Neb. 418, 172 N.W. 49; ... ...
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    ...showing is required to substantiate an abuse of discretion when the judgment is vacated than when it is not. Bigler v. Baker, 40 Neb. 325, 58 N.W. 1026, 24 L.R.A. 255; Coates v. O'Connor, 102 Neb. 602, 168 N.W. 102, 169 N.W. 239. Mere mistake or miscalculation of a party or his attorneys is......
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