Chase v. Lavelle

• Decision Date: 11 March 1921
• Docket Number: 21363
• Citation: 181 N.W. 936,105 Neb. 796
• Parties: FRANCIS CHASE ET AL., APPELLANTS, v. ALBERT J. LAVELLE ET AL., APPELLEES
• Court: Nebraska Supreme Court

181 N.W. 936

105 Neb. 796

FRANCIS CHASE ET AL., APPELLANTS, v. ALBERT J. LAVELLE ET AL., APPELLEES

No. 21363

Supreme Court of Nebraska

March 11, 1921

APPEAL from the district court for Greeley county: BAYARD H. PAINE JUDGE.Affirmed in part, and reversed in part, with directions.

Affirmed in part, and reversed in part, with directions.

A. H Murdock and Lanigan & Lanigan, for appellants.

James P. Boler and P. J. Barrett, contra.

OPINION

CAIN, C.

Plaintiffs Francis, John, Charles and Ambrose Chase, are minor children of Mrs. Anna Chase, who died intestate on May 17, 1919, and bring this suit by their next friend to cancel a deed made October 17, 1918, by their mother to the defendantAlbert J. Lavelle, of the southwest quarter of section 4, in township 18, range 10, west of the sixth principal meridian, in Greeley county, Nebraska, and to cancel a tax deed thereto issued to him by the county treasurer on July 6, 1907, and to quiet title in them and Albert J. Lavelle, also a son of deceased, as heirs at law of their deceased mother, and also for an accounting for rents.The grounds upon which cancelation of the first-named deed is sought are that the mother was mentally incompetent to make it, that it was procured by the fraudulent representations of the grantee, and that the consideration of $ 200 therefor was grossly inadequate.Cancelation of the tax deed is asked on the ground that it is void for lack of compliance with the statutory requirements authorizing the county treasurer to execute it.The Travelers Insurance Company of Hartford, Connecticut, was made a partydefendant because it holds a mortgage for $ 8,000 executed January 30, 1919, by the defendantAlbert J. Lavelle and wife upon the quarter section above described and also upon the northwest quarter of section 9, in township 18, immediately adjoining to the south; and plaintiffs ask, in the event that they prevail and the mortgage is foreclosed, that the last-described quarter section be sold first to satisfy the debt.The mortgagee did not answer.The answer of the principal defendant, Albert J. Lavelle, denied the grounds alleged for the cancelation of the deeds, pleaded that the deed of October 17, 1918, from his mother to him was valid, and further averred that he had adversely occupied the land for more than the statutory period, whereby he had acquired title thereto.The reply denied the averment of adverse user, and the amended petition alleged that such user was permissive.The court below found generally for the principal defendant, Albert J. Lavelle, and quieted title in him, and further found that the deed of October 17, 1918, was valid, and that he had practiced no fraud in obtaining it, and that he had adversely occupied the land for the statutory period, whereby he had acquired title, but found that the tax deed was void.Plaintiffs appeal, asking a reversal of the decree, except the finding therein that the tax deed is void.As it clearly appears that the tax deed is void, and as there is no contention that it is valid, it may be dismissed from further consideration, except as it appears in a narrative of the facts.

The material facts are substantially without dispute and are as follows: About 1880, Patrick Lavelle, Sr., with his family of several sons and daughters, including Anna, mother of plaintiffs, went to Greeley county and homesteaded.The father entered the northwest quarter and his daughter Anna the southwest quarter of section 4, as homesteads, the latter quarter being the land in controversy.Both received patents from the government.Anna's being issued June 5, 1890.The family residence, however, was maintained on the northwest quarter, which Patrick Lavelle, Sr., took as a homestead, which he owned until 1907, and on which he lived until 1903.No buildings were ever put on Anna's quarter, except a shanty she had on it before she got her patent, and no one has ever lived upon it since that time.Except for a fence, which her father built around it in 1891, and the breaking of a few acres, and the placing of a hydraulic well and windmill by the defendantAlbert J. Lavelle sometime after 1910, no improvements have ever been made on this land.It has always been used in connection with the northwest quarter, on which the family lived, and chiefly as a pasture and hay meadow.In 1881the defendantAlbert J. Lavelle was born on this homestead of Patrick Lavelle, Sr., where he lived with his grandfather until 1903.After Albert's birth, his mother, Anna Lavelle, went to Omaha, where she was employed until about 1898, but she made many visits to her father's home in Greeley county where her son Albert was living.During that period of about 17 years her father managed her land in conjunction with his own, and paid the taxes on it, and continued to do so up to 1903; when he left his farm.On January 1, 1898, three days before her marriage, Anna Lavelle signed and acknowledged a deed of her land to her son Albert for the expressed consideration of $ 1,000.Three days later she married Mr. Chase in Omaha, and they immediately went to San Francisco to live.On December 13, 1898, this deed was recorded, and in November, 1899, soon after the birth of her first child by Mr. Chase, Anna Lavelle Chase began action in the district court for Greeley county to have it set aside.We gather from her petition in that case that she claimed never to have delivered the deed, but to have placed it in her trunk in her father's house for safe-keeping.At any rate, her case went to decree on January 10, 1900, and the court found in her favor and canceled that deed and quieted title in her.The court also found that the deed was never delivered, but that the defendantAlbert J. Lavelle obtained the same and caused it to be recorded without authority, and that he retained the same over her protest; that there was no consideration for the deed other than love and affection; and that she never intended delivery thereof until some indefinite future date and contingency.Anna testified at the trial in Greeley in January, 1900, and a few months afterwards left for California, where she lived until her death on May 17, 1919, and never returned to Nebraska.She was, therefore, absent from Greeley county for 19 years.She had, however, a little correspondence with Albert and her sister, Kate O'Connor, who lived in Greeley county.None of her letters to Albert were offered in evidence.

In 1903 and 1904 Albert rented the Sweedler quarter and farmed it and lived with his aunt, Kate O'Connor, while he was tending the crops, and then returned to his grandfather's homestead, which his uncle, Martin Lavelle, was farming in connection with Anna's quarter, as before.In 1905 Albert was married and lived on his grandfather's homestead which he and his uncle Martin rented, up to March 1, 1907, during which period the homestead was operated in conjunction with his mother's land.He also worked a quarter section of his own immediately south of his mother's land.Albert bought his mother's land for the delinquent taxes of 1903, and on July 6, 1907, received a tax deed from the county treasurer, which, as before stated, was void.From the time he received this tax deed, Albert testifies that he claimed to own the land, and that he took possession of it, rented it, and collected the rents, and paid the taxes on it; that, in the summer of 1910, he broke up about 27 acres, and in 1915 about 20 acres more, and fixed the fences and put in a hydraulic well and windmill.There is no evidence that his mother knew anything about what Albert was doing, or that he ever told her of his occupancy of her land until his letter of September, 1918, hereinafter set out.There is also the testimony of several witnesses to corroborate Albert's dominion over the place from 1907 onward.

On September 13, 1918, Albert's attorney composed and typed the following letter, which Albert copied with pen and ink on other paper, and, adding a few words, mailed to his mother at San Rafael, California, as his own:

"Sept. 13th, 1918.

"Dear Mother: I have not heard from you in some time and thought that I would write you at this time as I have been thinking of moving onto the place and improving it.

"I have a tax deed to the place and it will be necessary for me to go through court to perfect my title, that is to give me a good record title.I have always claimed the farm and still claim it but your deed is on record and it will be a cloud on the title, to give me the proper record title so that I can secure a loan on the farm I must go through court and secure a deed in that manner.

"I have consulted an attorney and he said that the expense of the action would be in the neighborhood of $ 200 and I would rather you would get that than to pay it to some lawyer, now if you will send me a quitclaim deed to the farm that will clear the title and I can borrow money on the place and improve it.As far as the ownership of the place is concerned I know that I am the owner of it but owning property and then trying to borrow on it there is always some flaw found in the title.I have had the exclusive open and adverse possession of the farm under my tax deed for more than ten years and that gives me a perfect title but I must go through court with it.

"Now mother that will save a lot of expense and will be lots easier for me to give you the money than to pay it to a lawyer and I hope that you will send the deed as soon as possible as I want to get to work on the place this fall, and if I do not receive the deed I must start the court action at once, send the deed to either banks at Greeley or place it in a bank out there and I will send the money to the bank and they can send me the deed and in that way...