Busteed v. Sheffield, 32768

• Decision Date: 31 October 1950
• Docket Number: No. 32768,32768
• Parties: BUSTEED v. SHEFFIELD et al.
• Court: Nebraska Supreme Court

Page 471

44 N.W.2d 471

153 Neb. 253

BUSTEED v. SHEFFIELD et al.

No. 32768.

Supreme Court of Nebraska.

Oct. 31, 1950.

Syllabus by the Court.

1. The possession of a duly executed deed is prima facie proof of delivery thereof and the burden is on one contesting to overcome the presumption of delivery.

2. When a defendant at the close of the evidence of the plaintiff moves for dismissal of the action for want of evidence to support a judgment or decree the defendant admits the truth of the evidence and every reasonable conclusion which may be drawn therefrom.

3. When a motion is made at the close of plaintiff's evidence to dismiss for want of evidence to sustain a cause of action it is the duty of the court to determine the question as a matter of law.

4. One seeking specific performance of an oral contract for the conveyance of real estate has the burden of proving by a preponderance of evidence a contract which is clear, satisfactory, and unequivocal in its terms; that he has performed the burdens imposed upon him by the contract; and that his acts constituting performance were such as were referable solely to the contract sought to be enforced, and not such as might be referable to some other or different contract.

V. H. Halligan, North Platte, for appellants.

Baskins & Baskins, North Platte, for appellees.

Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

This action as originally instituted was by Alice Busteed, plaintiff, against Walter W. Sheffield, Ida Sheffield, Helen M. Gile, Robert Busteed, Allen Stimson, Gordon Stimson, and Ruby Stimson, defendants. Helen M. Gile became Helen M. Ford by marriage after the commencement of the action and before the trial. The object and purpose of the action was to have vacated and set aside a deed to a half section of land in Keith County, Nebraska, from Mansfield Sheffield and Ellen D. Sheffield to Walter W. Sheffield and to have title to the said land quieted in plaintiff, Walter W. Sheffield, Helen M. Gile, Allen Stimson, and Gordon Stimson, all being heirs at law of Mansfield Sheffield and Ellen D. Sheffield both of whom were deceased. Other relief was sought under the pleadings but determination thereon was reserved until after final decision upon the validity of the deed.

Alice Busteed, Walter W. Sheffield, and Helen M. Ford are children of Mansfield Sheffield and Ellen D. Sheffield and Allen Stimson and Gordon Stimson are the children of their deceased daughter. Ida Sheffield is the wife of Walter W. Sheffield and Ruby Stimson is the wife of Gordon Stimson. Robert Busteed is the husband of the plaintiff.

The district court by its decree declared void the deed and quieted title to the land in Alice Busteed, Walter W. Sheffield, Helen M. Ford, Allen Stimson, and Gordon Stimson. From the decree the defendants Walter W. Sheffield and Ida Sheffield have appealed.

A large number of assignments of error appear in the brief but because of their interrelationship they are not subject to separate designation and treatment herein.

The record discloses that Mansfield Sheffield obtained title to a portion of the land in question in 1900 and the remainder in 1902 and that on December 30, 1929, he and Ellen D. Sheffield executed a deed to all of it in favor of Walter W. Sheffield. Walter W. Sheffield went into possession of the land as a tenant in about January 1920. By his pleadings he contends that he tenancy was coupled with an oral agreement whereby he was to receive full title to the land on the death of his parents. His mother died in February 1940. A short time thereafter Walter W. Sheffield came into possession of the deed. The deed was filed for record in December 1940. Mansfield Sheffield died on April 10, 1945.

The plaintiff offered no direct evidence as to where the deed reposed from the date of its execution until December 1940, when it was filed for record by Walter W. Sheffield. Also no evidence was offered as to knowledge of its existence or how it might have come into possession of Walter W. Sheffield except that his father had a box in which he kept papers which box at some uncertain time was turned over to him by one of the sisters.

As a part of her case the plaintiff adduced evidence that Walter W. Sheffield stated after recording the deed that he neither had nor made any claim to title to the land in the lifetime of his father. Walter W. Sheffield pleaded affirmatively in his answer that he claimed no title to the land in the lifetime of his parents.

This was the state of the record in this case at the close of plaintiff's evidence at which time the defendants Sheffield moved for dismissal on the ground that the evidence did not sustain a cause of action. The point of the motion is that in this state of the record Walter W. Sheffield was the grantee in possession of a deed which had been duly executed and was entitled to a presumption that the deed had been duly delivered. He contends that the burden was upon the plaintiff to prove that there was no valid delivery of the deed.

It is well settled that possession of a duly executed deed is prima facie proof of delivery and the burden is on one contesting it to overcome the presumption of delivery. Roberts v. Swearingen, 8 Neb. 363, 1 N.W. 305; Wilson v. Wilson, 85 Neb. 167, 122 N.W. 856; Clark v. Holmes, 109 Neb. 213, 190 N.W. 493; Ladman v. Ladman, 130 Neb. 913, 267 N.W. 188.

If failure of delivery was the sole essence of plaintiff's right of recovery and if she has sustained the burden contemplated by this legal rule then of course the district court did not commit error in overruling the motion to dismiss. If she did not it was the duty of the court to sustain the motion.

As we view the record it seems apparent that these defendants were entitled at the conclusion of plaintiff's evidence to the benefit of the presumption of delivery of the deed in question. It does not follow however that because thereof they were entitled to have their motion to dismiss sustained. That was not the only determinable factor in the case and not the only basis of the cause of action at that time.

The plaintiff sufficiently pleaded that the deed was not operative as an instrument of conveyance of the real estate described therein. In support of the pleading as hereinbefore indicated evidence was adduced and received that Walter W. Sheffield stated and admitted that he had and claimed no right or estate in the lands as against the father in his lifetime.

If this was true, and at the time the motion was made the court was required to regard it as true, the deed did not have the effect that it purported to have on the date of execution, on the date of delivery, or at the time of recording, and the burden of proving a cause of action had been sustained without regard to whether or not Walter W. Sheffield was entitled to the presumption attending the unexplained possession of a deed.

When a defendant at the close of the evidence of plaintiff moves for a dismissal of the action for want of evidence to support a judgment or decree the defendant admits the truth of the evidence and every reasonable conclusion which may be drawn therefrom. Schroeder v. Bartlett, 129 Neb. 645, 262 N.W. 447; Meyer v. Platt, 137 Neb. 714, 291 N.W. 86; Lucas v. Lucas, 138 Neb. 252, 292 N.W. 729; Caspers v. Frerichs, 146 Neb. 740, 21 N.W.2d 513; Casper v. Frey, 152 Neb. 441, 41 N.W.2d 363.

Coupled with this rule is another rule which requires ...