Brooks v. Brooks

• Decision Date: 10 November 1920
• Docket Number: 21084
• Citation: 180 N.W. 41,105 Neb. 235
• Parties: CALVIN RAYMOND BROOKS ET AL., APPELLEES, v. WILLIAM A. BROOKS ET AL., APPELLANTS
• Court: Nebraska Supreme Court

180 N.W. 41

105 Neb. 235

CALVIN RAYMOND BROOKS ET AL., APPELLEES, v. WILLIAM A. BROOKS ET AL., APPELLANTS

No. 21084

Supreme Court of Nebraska

November 10, 1920

APPEAL from the district court for Dawson county: HANSON M. GRIMES JUDGE.Affirmed.

AFFIRMED.

Cook & Cook, for appellants.

H. M Sinclair, W. A. Stewart and J. H. Linderman, contra.

ALDRICHJ. LETTON, J., dissents.

OPINION

ALDRICH, J.

This is a suit in equity brought by appellees, Calvin Raymond Brooks, Jennie Marie Floyd, Stella Etna Mainard, and Orlo Bryan Brocks, against the appellants and the appelleeElla Brooks, to quiet title in them to the northeast quarter of section 18, in township 10 north, range 24 west of the sixth P. M., in Dawson county.

Calvin J. Brooks was the grandfather of appellees herein and Ella Brooks was his daughter-in-law.Calvin M. Brooks was the father of appellees and son of Calvin J. Brooks.The record presents the issue: Did the land pass to Calvin M. Brooks by a deed from his father, Calvin J. Brooks?Is the decree sustained by the evidence and the law?The grandfather, Calvin J. Brooks, lived on a farm near North Platte, surrounded by his several sons, each one in possession of a farm their father had given them.Calvin M. Brooks, another son, lived with his family in Pennsylvania.The father wished to have his son who resided in Pennsylvania come to Nebraska, and as inducement offered to give him the land now in litigation.Calvin M. Brooks then moved his family to the home of the father in 1898, and lived there until his death, which occurred shortly after the execution of the deed, when he met with an accident that caused his death.After the death of Calvin M. Brooks, the son, the deed in question was destroyed without the knowledge or consent of plaintiffs and was never recorded.Ella Brooks, widow of Calvin M. Brooks, files an answer admitting that she was the wife and is the widow of Calvin M. Brooks and mother of plaintiffs herein, and further answering disclaims any interest, right or title in said premises.

The trial court entered a decree quieting title in plaintiffs.The issue is largely one of fact.Ella Brooks, mother of plaintiffs, testifies that she lived at Sterling, Colorado, that she is the widow of and was the wife of Calvin M. Brooks, that she is mother of plaintiffs, who lived in Pennsylvania until they came west in 1898.She further testifies that her husband received letters from his father, importuning him to come to Nebraska with his family, and make his home with him; that he, the father, would give him the land in question.On or about the first of January, 1898, Mr. and Mrs. Calvin J. Brooks and Calvin M. Brooks went to Cozad and executed the deed for the northeast quarter in question.On their return, Calvin M. Brooks had the deed in his possession and showed it to his wife, Ella Brooks, who said it was signed by Calvin J. Brooks and his wife.Ella Brooks further testified that her husband placed the deed in a writing-desk in the bedroom of the father and mother; that, after the death of Calvin M. Brooks, the father brought the unrecorded deed out and discussed it with the widow of the deceased son and burned it, saying he wanted to make different arrangements.Ella Brooks also said that, when she returned to Nebraska in 1907, Calvin J. Brooks told her he was going to give the children, plaintiffs herein, the land in question.

It is claimed that Ella Brooks' evidence is incompetent, as she had a direct legal interest in the result of the action, and that she was the representative of a deceased person.This objection is based upon a section of our statute(section 7894, Rev. St. 1913), and presents a law question which we may as well determine now as any other time.When persons are parties to an action, but not to the issue, and disclaim any interest in the subject-matter, they are competent.In the case of Mester v. Zimmerman, 7 Ill.App. 156, the supreme court of Illinois said: "A son of the mortgagor who had been made a partydefendant to the foreclosure proceedings, but who by his answer disclaimed all interest in the event of the suit, and who had formally renounced the legacy left him by the mortgagor in his will, is a competent witness upon the question of usury, when called by the other defendants."Also, in the case of New American Oil & Mining Co. v. Troyer, 166 Ind. 402, 76 N.E. 253, the supreme court of that state said: "Such a pleading of itself operates as an estoppel, and, between the parties and their privies, is an absolute bar to any further assertion of the right renounced."SeeGreeley v. Thomas, 56 Pa. 35;Jordan v. Stevens, 55 Mo. 361;12 Enc. of Evi. 769, note.See, also, Denny v. Schwabacher, 54 Wash. 689, 104 P. 137;Fenton v. Miller, 94 Mich. 204, 53 N.W. 957.

It is also true that in a case tried to the court without a jury the admission of improper evidence is simply error without prejudice.Sharmer v. McIntosh, 43 Neb. 509.

It has also been held by this court that since the amendment of 1883(Laws 1883, ch. 83), with reference to the competency of an interested party to testify to a conversation or transaction had with a deceased person, a party adversely interested to the representative of the deceased is not incompetent.Riddell v. Riddell, 70 Neb. 472, 97 N.W. 609.

But it will be conceded that where persons, who are even parties to the action, but not to the issue, disclaim any interest in the subject-matter, they are competent witnesses.Martin v. Martin, 118 Ind. 227, 20 N.E. 763.It appears of record in the instant case that Ella Brooks filed a disclaimer denying every interest and claim of every character in and to the subject-matter of this case.Therefore, she has forever barred herself from hereafter setting up any claim of any character antagonistic to the results of this suit.Equity has very well said that in a case of this kind death closes the lips of the one and the law those of the other.It is axiomatic, then, that, if Ella Brooks is forever barred from hereafter setting up any claim of any character in the subject-matter of this suit, the record that she made here in the instant case will be a complete bar and final determination of her each and every claim.Therefore, the testimony of Ella Brooks was material and competent and properly received.

Another legal proposition raised is: Was there a delivery of the deed by the father to the deceased son?...