O'Brien v. Gaslin
| Decision Date | 04 November 1886 |
| Citation | 30 N.W. 274,20 Neb. 347 |
| Parties | GEORGE M. O'BRIEN ET AL., PLAINTIFFS IN ERROR, v. WILLIAM GASLIN, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas County. Tried below before NEVILLE, J.
Reversed and remanded.
George M. O'Brien, Moses P. O'Brien, and E. M. Bartlett, for plaintiff in error.
Howard B. Smith, A. C. Wakeley, and George B. Lake for defendant in error.
This is an action of ejectment brought by Gaslin against the plaintiffs in error to recover the possession of lots 8, 9 and 12 in Griffin & Smith's Addition to the city of Omaha. The defendants below (plaintiffs in error) in their answer deny that Gaslin has any right or title to said real estate; allege that the land was conveyed by Jane A. North on the 21st of September, 1857, to August Graeter, in trust for her minor son, James E. North, and plead the statute of limitations. On the trial of the cause a verdict was rendered in favor of Gaslin upon which judgment was rendered. The cause is now brought into this court by petition in error, there being 63 assignments of error. Many of these errors are unimportant, and only such as are deemed material will be noticed.
The testimony shows that the land in controversy was entered in July, 1857, by Jane A. North, and that she received a patent therefore in 1860; that in September, 1857, she conveyed the land in question by warranty deed to Augustus Graeter, jr.; that in October following Augustus Graeter, jr., by warranty deed conveyed an undivided half of said land to James E. North; that on the same day Augustus Graeter, jr., conveyed an undivided half of said land to Augustus Graeter, sr.; that on January 9, 1858, James E. North conveyed by warranty deed an undivided half of said land to Augustus Graeter, jr.
The following is an abstract from the records of the conveyances affecting said real estate:
Augustus Graeter, Jr.
W. D.
Augustus Graeter, Sr.
W. D.
W. D.
Augustus Graeter, Jr.
W. D.
Augustus Graeter, Jr.
W. D.
Jan. 12, '58
Jr., was a party defendant. Judgment was rendered for plaintiffs, and
execution levied upon land in controversy.
J. M. Woolworth
S. D.
Aug. 14, '61
Robert K. Woods
S. W. D.
Mar. 28, '62
J. M. Woolworth
P. of A.
Apr. 11, '66
Griffin, Gaslin & Smith
W. D.
June 6, '68
W. R. Bartlett
W. D.
Sept. 10, '68
Rollin C. Smith
W. D.
Feb. 9, '69
Plat.
Feb. 18, '69
land in controversy.
J. M. Woolworth
S. D.
Jan. 22, '70
Griffin & Smith
Q. D.
Jan. 25, '70
Caroline P. Gaslin
Q. D.
Feb. 10, '70
Wm. Gaslin, Jr
P. of A.
Dec. 21, '70
R. C. Smith
W. D.
Jan. 5, '71
Wm. Gaslin, Jr
W. D.
| [30 N.W. ] |
P. A.
| [30 N.W. ] |
D. A.
Oct. 20, '57
H.
524
und. 1/2
10. R. K. Woods and wife.
11. Same by J. M. W.
12. Wm. Gaslin and wife
Sept. 11, '68
4
382
16
und. 1/3
13. W.R.Bartlett and wife.
16. Henry Grebe, sheriff
Jan. 22, '70
17. J. M. Woolworth
Jan. 25, '70
special W. D.; sheriff's
deed; power of attorney.
Objections were made to the introduction of a copy of the deed from Augustus Graeter, sr., to Augustus Graeter jr., which will be noticed hereafter.
In 1859, Woods, Christie & Co. brought an action in the district court of Douglas County against William J. Baugh, A. B. Dawkins, and A. F. Graeter, and afterwards recovered judgment in said action, under which the land in question was sold as the property of A. F. Graeter. This sale was afterwards confirmed and a deed made to the purchaser. It is earnestly urged that the court had no jurisdiction in the premises, and that the entire proceedings are void. Without at this time, more than twenty-five years after the judgment was rendered, reviewing the proceedings step by step as though the case was now before us on error, we will say that the testimony fully establishes the fact that the court had jurisdiction in that case, and that its judgment is final and conclusive. It seems that afterwards, in the year 1869, an application was made to have the sheriff amend his return to conform to the facts, and leave was granted and the return amended. This power to permit amendments to conform to the facts is inherent in courts of record, and while care should be exercised to see that it is not abused, a denial of the right in many cases would work great injustice. The amendment therefore was a proper exercise of the power of the court.
It is claimed, however, that the judgment at this time was dormant. But that question does not enter into the case. The land had been sold to satisfy the judgment, and the amendment sought was to correct the return according to the facts--to make it state exactly what had been done in the case. Whether the judgment was dormant or not could not affect proceedings which had taken place under it while it was in full force, and a confirmation of the sale cures all irregularities in the proceedings.
The question here involved was before this court in Day v. Thompson, 11 Neb. 123, 7 N.W. 533, and the sale of the real estate under the order of the court sustained.
But it is claimed that even if the sale was valid, still as the land was conveyed to Graeter in trust for North, that no title passed by the sale. It will be observed that the deed from Jane A. North to Augustus Graeter was a warranty deed absolute in its terms; that the deed from August Graeter, jr., to North, and from North to Augustus Graeter, jr., are the same. In such case it is well settled in this court that an express trust to reconvey to the grantor cannot be raised by a parol promise. Hansen v. Berthelsen, 19 Neb. 433, 27 N.W. 423. Courvoirsier v. Bouvier, 3 Neb. 55. Secret trusts are not favored, and even if such a trust could be enforced against the alleged trustee, a bona fide purchaser of the premises would be entitled to protection. We hold therefore that no trust was created in favor of James E. North by the several deeds to Augustus Graeter, jr.
Mr. North, at the time he executed the deed to Augustus Graeter, jr., was under the age of twenty-one years, he having reached his majority in 1859. He sought to disaffirm said deed in 1872, by the execution of a deed, of which the following is a copy:
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