Brooks v. Kimball County
| Decision Date | 21 September 1934 |
| Docket Number | 28915 |
| Citation | 256 N.W. 501,127 Neb. 645 |
| Parties | MARTHA BROOKS ET AL., APPELLANTS, v. KIMBALL COUNTY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Kimball county: ISAAC J. NISLEY JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Where grantors by warranty deed convey to a county a block of ground, the deed reciting a consideration of one dollar and containing the following language, " The conditions of this deed is, that the county commissioners of said Kimball county shall erect and maintain a county court house on said block," and with no express right of reverter contained in said instrument, and the county commissioners erect on said block a courthouse, which is maintained by the county from 1893 to December 26, 1928, held, the deed imposed a condition subsequent which has been substantially complied with by said county and the county is vested with the fee simple title to said real estate.
2. Held, section 49-101, Comp. St. 1929, adopts the common law of England and not the statutory law of England.
Appeal from District Court, Kimball County; Nisley, Judge.
Action in equity by Martha Brooks and another against the County of Kimball. From the decree, plaintiffs appeal.
Affirmed.
G. P Kratz, for appellants.
Roland V. Rodman, Orville C. Wisdom and John H. Kuns, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and MESSMORE, District Judge.
This is an action in equity brought to determine the title to real estate, for an adjudication for damages for waste committed thereon by defendant below, appellee herein, while in the possession thereof, and asking judgment for the reasonable rental value of the real estate since the time defendant's title ceased, for interest, costs and attorney's fees. The court below found for the defendant.
The amended petition of plaintiffs below, appellants herein, alleges the necessary subject-matter in a case of this nature for the construction of a deed and forfeiture of title and for the other relief prayed for, as above noted.
The defendant in answer thereto denies every allegation of said petition not expressly admitted; admits that Martha Brooks, one of the plaintiffs, was the legal guardian of plaintiff Frank D. Masner (L. R. Eastman was later substituted as guardian of said minor on July 26, 1933); that she brings this action as such guardian on behalf of herself and her ward; that Kimball county is a county established under the laws of Nebraska, a body corporate and politic, capable of suing and being sued; that on June 20, 1892, and prior thereto, one William Yannayon was the owner in fee simple title absolute and in possession of block 5, Yannayon's addition to the town of Kimball, in Kimball county; admits that William Yannayon died testate in 1899, without issue, leaving Sarah Yannayon, his widow, as his sole and only legatee and devisee; that Sarah Yannayon died in 1923, testate, without issue, leaving Martha L. Masner, her grandniece, and a grandnephew as her sole and only legatees and devisees; that Martha L. Masner is one and the same person as the plaintiff, Martha Brooks; that the defendant entered into possession of said block 5, Yannayon's addition, on or about the 20th day of June, 1892.
For the purpose of this opinion the affirmative defense, as stated in the answer of defendant to the amended petition of plaintiffs, need not be set out.
The evidence discloses that Kimball county became a separately organized county November 1, 1888, and in 1892 William Yannayon, a resident of the county at that time, deeded to the county the premises above described; that subsequent to the receipt of the deed the county proceeded to build a courthouse on the real estate described. For the purpose of this opinion it is necessary to set out the warranty deed showing the conveyance to the county by William Yannayon of the real estate in question, to wit:
Said instrument was entered on numerical index and filed for record in the clerk's office of said county on the 20th day of June, 1892, at 2 o'clock p. m., and recorded in book D of deeds on page 242.
There appears in the record a stipulation that any demand made by the plaintiffs against defendant for title to and possession of the premises involved in this action and for damages for the removal of the buildings and improvements therefrom would have been refused by defendant herein, if made.
Plaintiffs introduced in evidence all the records from the county court of Kimball county necessary to show that Sarah Yannayon was the sole and only heir and devisee of William Yannayon, who died testate, a resident of Missouri, on January 19, 1899; also all the records from said county court necessary to show the probate of the will of Sarah Yannayon, the petition for probate of her will setting forth that the devisees under her will were the parties who are the plaintiffs in this action, and that the said Sarah Yannayon departed this life on the 18th day of September, 1923.
The record further sets forth the deposition of C. F. Robertson, a lawyer and banker, 70 years of age, residing in Forreston, Illinois, formerly a resident of Kimball county from 1884 to 1893, and who held the office of county commissioner of said county in 1892 and 1893. He testified that the county commissioners were looking for a site upon which to build a courthouse for the reason that the county had inadequate quarters for the transaction of its business, and William Yannayon offered to deed the real estate in question in this case to the county, provided the commissioners would build and maintain a courthouse thereon, with the understanding that when it was no longer used for that purpose it would go back to the grantor, and that said grantor was to receive nothing as pay for the block except that he was to get it back, if the county ever abandoned it as a courthouse site. The offer was accepted, William Yannayon and his wife, Sarah, conveying the premises to Kimball county by the deed hereinabove set out. The courthouse was built in 1892 or 1893 at a cost of approximately $ 10,000.
Martha Brooks, one of the plaintiffs, testified that she was raised on a farm nine miles southwest of Kimball in the home of Sarah Yannayon, her great-aunt; that she was a sister of Frank D. Masner; that Sarah Yannayon had no children of her own; that she had overheard her aunt tell witness' mother several times that whenever Kimball county did not maintain the land for a courthouse it was to come back to her aunt, and that she had several conversations with her aunt to the same effect. These conversations occurred about 16 years ago.
There is considerable testimony offered by plaintiffs in an effort to prove the allegations of their amended petition regarding the value of the premises in question and damages for the destruction and removal of the buildings therefrom, but which is not necessary to be set out for the purposes of this opinion.
The defendant placed in evidence a petition to submit to the electors of the county the question of the construction of a courthouse, a petition by certain persons to accept a courthouse site, and articles of agreement between Kimball county and one John Biggs with reference to the acceptance of the completed structure.
Clara Masner was called as a witness for defendant. She was a niece of Sarah Yannayon and the mother of Martha Brooks and Frank D. Masner, plaintiffs. She testified that she lived with her aunt two years prior to her aunt's death and that she never heard any statement made to her by her aunt, in the presence of her daughter, wherein her aunt stated that...
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