Blodgett v. McMurtry

• Decision Date: 11 June 1892
• Citation: 34 Neb. 782,52 N.W. 706
• Parties: BLODGETT v. MCMURTRY ET AL.
• Court: Nebraska Supreme Court

34 Neb. 782

52 N.W. 706

BLODGETT

v.MCMURTRY ET AL.

Supreme Court of Nebraska.

June 11, 1892.

Syllabus by the Court.

1. Where the testimony is conflicting, and the judgment is not against the clear weight of evidence, it will not be set aside.

2. Where one by his own words willfully causes another to believe in a certain state of facts, as by stating that he is not the owner of certain property, and thus induces him to act on such belief so as to alter his own previous position, as by purchasing the property, the former is concluded from afterwards averring against the latter a different state of things from what he then represented.

Appeal from district court, Lancaster county; FIELD, Judge.

Action by Harrison H. Blodgett against James H. McMurtry and others to quiet title to certain land. From a judgment for defendants, plaintiff appeals. Affirmed.H. H. Blodgett, pro se.

J. R. Webster and Harwood, Ames & Kelly, for appellees.

MAXWELL, C. J.

The plaintiff brought an action against the defendants in the district court of Lancaster county, the cause of action being set forth in the second amended petition as follows: “That on or about the 3d day of January, 1876, the defendants James H. McMurtry and Amanda E. McMurtry did bargain and sell to plaintiff for a valuable consideration the following land, to wit: ‘Beginning 100 feet east and 100 feet south of the southeast corner of block 12 of Lavender's addition to the city of Lincoln, Lancaster county, Neb., thence east 300 feet; thence south 300 feet; thence west 150 feet; thence north 150 feet; thence west 150 feet; thence north 150 feet to the place of beginning; being a part of the east one half of the northwest one quarter of section 25, town 10, range 6 east, in Lancaster county, Neb.’ And said McMurtrys were the owners of said land, and at the plaintiff's instance and request did make, execute, and deliver a deed of said land to E. Mary Gregory, and conveyed said land to said E. Mary Gregory, as trustee for plaintiff. And it was agreed by and between the plaintiff and the defendants McMurtrys and Gregorys that said E. Mary Gregory was to convey said land to plaintiff at any time said plaintiff might request, plaintiff having paid the purchase price of said land; and said Gregorys have often been requested to convey said land to this plaintiff, but have at all times refused, and still refuse, so to convey said land to said plaintiff. And said deed of conveyance to E. Mary Gregory has never been filed for record upon the county records of Lancaster county, Neb., but was lost, and could not be found until about the time of commencing of this action, and affiant did not know and could not find out the description of said land until he found said lost deed. And afterwards defendants Charles T. Boggs and W. W. Holmes platted a part of said land, and named it ‘Boggs & Holmes' Addition to the city of Lincoln, Neb.,’ it being lots 50, 51, 52, 53, 54, and 55 of said Boggs & Holmes' addition; and afterwards the defendants, McMurtrys, on or about the 1st day of March, 1887, did unlawfully bargain, sell, and convey for valuable consideration lots 50 and 51 of said Boggs & Holmes' addition to Charles T. Boggs and W. W. Holmes, without the knowledge or consent of plaintiff, and converted the money to his own use; and after the said bargain and sale of said land to plaintiff as aforesaid, and after said Boggs & Holmes' addition was platted as a part of said land, the balance of said land was platted as McMurtry's addition to the city of Lincoln, Lancaster county, Neb., and consists of lots 11, 12, 13, 14, 15, 16, and 17 of block 2 of said McMurtry's addition. And said McMurtry and wife have unlawfully sold a part of said land and lots, the exact ones of which plaintiff is unable...