Chamberlain v. Grimes

• Citation: 60 N.W. 948,42 Neb. 701
• Parties: CHAMBERLAIN v. GRIMES ET AL.
• Decision Date: 09 November 1894
• Court: Supreme Court of Nebraska

42 Neb. 701

60 N.W. 948

CHAMBERLAIN

v.GRIMES ET AL.

Supreme Court of Nebraska.

Nov. 9, 1894.

Syllabus by the Court.

1. One Wright brought suit against one Grimes to cancel and be allowed to redeem from the lien of a void tax deed held by Grimes against the land of Wright, and to have the title to said lands quieted in him. Wright employed one Chamberlain, an attorney at law, to institute and prosecute said action; and, as compensation for his services in the premises, duly executed to him a conveyance for an undivided one-half of the real estate in controversy. While the action was pending, Grimes (with actual knowledge that Wright had already conveyed one-half the real estate to Chamberlain, and that such conveyance was unrecorded), for a consideration paid to Wright, obtained from him a dismissal of said suit, and a quitclaim deed to him (Grimes) for all the real estate involved therein. Held:

(1) That the decree of the district court canceling the lien of the void tax deed, and canceling the deed obtained from Wright by Grimes, as against an undivided one-half of said real estate, and permitting Chamberlain to redeem one-half of said real estate from the lien if said tax deed, and quieting the title to one-half of said premises in Chamberlain, was correct.

(2) That, if the contract between Wright and Chamberlain was champertous, it was not a defense of which Grimes could avail himself in this action.

2. If a defendant in a trial court omit to make a meritorious defense which he might have made, he will be bound by the record made there, and cannot interpose such defense for the first time in this court. Courtnay v. Price, 10 N. W. 698, 12 Neb. 188, reaffirmed.

Appeal from district court, Johnson county; Broady, Judge.

Action by Clarence K. Chamberlain against Lafayette Grimes on a cross bill filed by him in an action by William R. Wright and Sytha Phillips against the same defendant to have declared void a tax deed to certain lands, and to have title thereto quieted in them. By agreement between the parties themselves, the principal suit was dismissed; but on motion of cross plaintiff Chamberlain, who had appeared as attorney for the plaintiffs therein, it was reinstated on the docket, and leave given him to become a party, for the purpose of determining his rights in the property under a deed to an undivided half thereof, given him by the plaintiffs in the principal action, in return for his services as their attorney. From a decree quieting title to such undivided one-half in cross plaintiff Chamberlain, defendant appeals. Affirmed.S. P. Davidson and J. Hall Hitchcock, for appellant.

C. K. Chamberlain, A. M. Appelget, and T. Appelget, for appellees.

RAGAN, C.

December 8, 1888, William R. Wright and Sytha Phillips brought this suit to the district court of Johnson county against Lafayette F. Grimes et al. Wright and Phillips, in their petition, claimed to be the owners of the following described real estate, situate in said Johnson county, to wit: “The west half (1/2) of the S. E. one-fourth (1/4) of the S. W. one-fourth (1/4) of section twenty-five (25), and the S. E. quarter (1/4) of the S. E. quarter (1/4) of section twenty-six (26), all in township six (6) north, and range nine (9) east of the 6th P. M.” They alleged that Grimes was in possession of said lands, by virtue of a tax deed bearing date November 24, 1874; that such tax deed was void, and they prayed for an accounting of the rents, profits, taxes, and interest, and improvements, and offered to pay any balance that the court might find to be due Grimes, and prayed that the tax deed might be held void and set aside, and that the title to the lands be quieted in them. Summons in this action was duly served on the defendant Grimes in Johnson county on the 19th day of December, 1888. Grimes then went to Missouri, where Wright and Phillips resided, and on the 26th day of December, 1888, procured from them a quitclaim deed for the land and a dismissal of the suit. This dismissal was subsequently filed, and the suit dismissed; but afterwards, on motion of Clarence K. Chamberlain, who, as counsel and attorney for Wright and Phillips, brought the suit, it was reinstated on the docket; and Chamberlain filed a petition therein as against Grimes, alleging, in substance, that on or before December 5, 1888, the said Wright and Phillips were the owners of said real estate; that said Lafayette Grimes held possession thereof by virtue of a tax deed bearing date November 24, 1874; that said deed was void, for numerous reasons alleged in the petition; that on the 5th day of December, 1888, the said Wright and Phillips, by their deed of that date, duly executed and delivered, conveyed to him, the said Chamberlain, an undivided one-half interest in and to all of said real estate; that the consideration for said deed was services rendered and to be rendered by him to them, as counsel and attorney in and about the bringing this suit for quieting and confirming in them (Wright and Phillips) the title to said lands; that said deed of conveyance to him (the said Chamberlain) for an undivided one-half interest in and to said lands was not recorded at the time it was executed, nor for some months afterwards; that on the 26th day of December, 1888, the said Grimes, with full knowledge of the fact that said Wright and Phillips had conveyed to him (Chamberlain) an undivided one-half interest in and to said lands, by their deed of December 5, 1888, and with full knowledge of the fact that he (Chamberlain) was in possession of said deed, but that the same had not been recorded in Johnson county, fraudulently procured the said Wright and Phillips to execute to him (the said Grimes) a quitclaim deed for all of said real estate, which deed the said Grimes caused to be recorded in the office of the recorder of deeds of Johnson county, Neb., on December 28, 1888. Chamberlain also alleged in his petition, as another cause of action, although not so separately stated and numbered, that from the year 1887 he had been in the employ of Wright and Phillips, as their counsel, for the purpose of perfecting, quieting, and confirming in them the title to said lands; that, since said date, he had rendered for them various services, and advanced for them various sums of money, in and about the premises, for which he had no other security than the deed...