Campagna v. Home Owners Loan Corporation

• Decision Date: 21 November 1941
• Docket Number: 31206
• Citation: 300 N.W. 894,140 Neb. 572
• Parties: SAMUEL CAMPAGNA, APPELLEE, v. HOME OWNERS LOAN CORPORATION, APPELLANT
• Court: Nebraska Supreme Court

300 N.W. 894

140 Neb. 572

SAMUEL CAMPAGNA, APPELLEE, v. HOME OWNERS LOAN CORPORATION, APPELLANT

No. 31206

Supreme Court of Nebraska

November 21, 1941

APPEAL from the district court for Douglas county: WILLIAM A. DAY JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. The municipal court of Omaha may hear and determine an action to recover back a 100-dollar payment of earnest money on a contract to purchase real estate, where defendant failed to comply with a covenant to convey the property to plaintiff " free and clear of all liens and encumbrances whatsoever," though the city charter provides that the municipal court shall not have cognizance of any action in any matter wherein the title or boundaries of land may be in dispute.

2. In a covenant to convey land free and clear of all liens and encumbrances whatsoever, the word " encumbrances" may include whatever prevents or impedes its transfer, and a judgment standing on the public records unpaid and uncanceled may be an encumbrance, though the lien expired by the lapse of time and by the death of the judgment debtor.

3. Where there is no defense in fact or law to a case made by plaintiff, errors of the trial court in the proceedings, if any, are immaterial on an appeal by defendant from the judgment against him.

Appeal from District Court, Douglas County; Day, Judge.

Action by Samuel Campagna against the Home Owners' Loan Corporation for an amount paid by the plaintiff to the defendant as earnest money on an unperformed contract for sale and purchase of land. From an adverse judgment defendant appeals.

Affirmed.

Ray E. Dougherty, Louis W. Heyde and Mose Silverman, for appellant.

Paul J. Garrotto, contra.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.

OPINION

ROSE, J.

This action was brought in the municipal court of Omaha by Samuel Campagna, plaintiff, to recover back $ 100 paid by him to Home Owners Loan Corporation, defendant, as earnest money on an unperformed contract for the sale and purchase of lot 9, block 6, Campbell's addition to Omaha.

In writing, January 14, 1939, for the price of $ 7,200, defendant agreed to sell and plaintiff to buy the lot described. The contract, on compliance with its terms, obligated defendant "to convey said property to plaintiff free and clear of all liens and encumbrances whatsoever," to furnish an abstract showing such a title and to execute and deliver a warranty deed accordingly. Failure of defendant to convey the lot to plaintiff "free and clear of all liens and encumbrances whatsoever" was alleged in the petition. On pleadings putting in issue the validity of the claim for a return of the earnest money, the municipal court entered a judgment in favor of plaintiff for $ 100 and interest. On appeal by defendant to the district court the judgment was the same. The questions for determination are presented by an appeal from the district court to the supreme court.

Jurisdiction of the municipal court over the subject-matter of the action and of the district court by appeal was challenged by defendant. The exercising of jurisdiction by either court is assigned as error. This position is based on a provision of the Omaha charter that the municipal court "shall not have cognizance of any action: * * * In any matter wherein the title or boundaries of land may be in dispute." Comp. St. 1929, sec. 22-206. Under the law of Nebraska the position thus taken is untenable. The title to the land is not in dispute. The record shows that defendant owns the fee and can convey title. The action is one to recover back earnest money paid under a written contract requiring defendant to convey the land "free and clear of all liens and encumbrances whatsoever." The pleadings raised an issue as to the existence of an encumbrance and as to the failure of defendant to make such a conveyance. The amount of the earnest money was within the jurisdiction of the municipal court. In principle the jurisdiction of the municipal court was properly entertained under a former opinion in which the court said:

"In Mushrush v. Devereaux, 20 Neb. 49, 28 N.W. 847, it was held that county courts and justices of the peace have jurisdiction, within the limits of amount, in actions to recover back a deposit, or money paid...