Campbell v. Kewanee Finance Company
| Decision Date | 11 February 1938 |
| Docket Number | 30175 |
| Citation | 277 N.W. 593,133 Neb. 887 |
| Parties | ROBERT M. CAMPBELL, APPELLEE, v. KEWANEE FINANCE COMPANY: HARVEY HESS ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Sioux county: EARL L. MEYER JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. Under our statute of frauds, the contract or some note or memorandum must be signed by the vendor, and the name or the description of the vendee must also appear.
2. An oral contract, partly performed, which the statute of frauds requires to be in writing, will be enforced by a court of equity.
Appeal from District Court, Sioux County; Meyer, Judge.
Suit by Robert M. Campbell against the Kewanee Finance Corporation impleaded with Harvey Hess and another, to quiet title to a tract of realty, wherein the defendants filed a cross-petition. Judgment for plaintiff, and defendants appeal.
Reversed.
F. J. Reed, for appellants.
Mothersead & York, contra.
Heard before GOSS, C. J., EBERLY, DAY, PAINE, CARTER and MESSMORE, JJ.
This is a suit to quiet the title to a tract of Sioux county land, and to obtain other equitable relief. The appellants are Harvey Hess and his wife, Elizabeth Hess, tenants in possession of the farm. They claimed a right or interest in the land other than as tenants. The appellee filed a demurrer to the second amended answer and cross-petition of the defendants, which was sustained by the court. The appellants elected to stand on their second amended answer and cross-petition and refused to plead further, and the trial court entered judgment on the appellee's petition.
Prior to February, 1927, the appellants were the owners of the real estate herein involved. At that time the land was covered by a real estate mortgage in favor of Union State Bank & Trust Company. This mortgage was in foreclosure, and a decree had been entered. There was in this case a decree for a second lien on said real estate for approximately $ 4,000. A release of this second lien was secured, and Mr. and Mrs. Hess executed a warranty deed to the premises. At the same time the bank executed a written option to Harvey Hess, giving him a right to repurchase. The appellee is the receiver of the Union State Bank & Trust Company, and has sold the farm to another for $ 6,000. The mortgage was originally made to the Kewanee Finance Company, and by it transferred to the bank as collateral. Since there is no issue to this assignment, it will not be mentioned again.
The gist of the present controversy is that after the written option an agent of the bank with respect to the land, R. P. Palmer, made a verbal agreement with Harvey Hess. It is alleged that he agreed that the appellants should be given the first chance and opportunity to buy the farm at any such reduced price, and that the appellants should make certain substantial improvements to the premises.
It is provided by the statutes: "Every contract for * * * the sale of any lands, shall be void unless the contract or some note or memorandum thereof be in writing and signed by the party by whom the * * * sale is to be made." Comp. St. 1929, sec. 36-105. This has long been the law of this state, and has often been construed by this court. Under our statute of frauds, the contract or some note or memorandum must be signed by the vendor, and the name or description of the vendee must also appear. Barkhurst v. Nevins, 106 Neb. 33, 182 N.W. 563. In every instance the court has held that the contract or some note or memorandum must be in writing. The contents of the contract or memorandum designated are the names of parties, description of land, price, general terms, and the signature of the vendor. Gardels v. Kloke, 36 Neb. 493, 54 N.W. 834.
There follows section 36-106, Comp. St. 1929, which provides "Nothing in this chapter contained shall be construed to abridge the powers of the court of equity to compel the specific performance of agreements in cases of...
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