Cizek v. Cizek

• Decision Date: 17 May 1978
• Docket Number: No. 41501,41501
• Citation: 266 N.W.2d 68,201 Neb. 4
• Parties: Charlie CIZEK, Appellant, v. Richard L. CIZEK, Calvin Carey Cizek, Betty Ann Grothe and Joseph T. Callahan, as Trustee under the Testamentary Trust set out in the Last Will and Testament of Joseph Cizek, a/k/a Joe Cizek, Deceased, Appellees.
• Court: Nebraska Supreme Court

Page 68

266 N.W.2d 68

201 Neb. 4

Charlie CIZEK, Appellant, v. Richard L. CIZEK, Calvin Carey Cizek, Betty Ann Grothe and Joseph T. Callahan, as Trustee under the Testamentary Trust set out in the Last Will and Testament of Joseph Cizek, a/k/a Joe Cizek, Deceased, Appellees.

No. 41501.

Supreme Court of Nebraska.

May 17, 1978.

Syllabus by the Court

1. A general demurrer tests the substantive legal rights of the parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from facts which are well pleaded.

2. A deed, in terms conveying a title in fee simple, is not to be held a mortgage, unless given to secure payment of a debt or loan. If personal liability to pay the debt is extinguished and it is optional with the grantor to rescue the property by payment, or relinquish it by nonpayment, it is an absolute sale with privilege of repurchase, and not a mortgage.

3. A safe, and perhaps the most satisfactory, test in all cases, where it is contended that an absolute conveyance of real estate is in actuality a mortgage, is whether the relation of the parties to each other as debtor and creditor continues. If it does, the transaction will be treated as a mortgage, otherwise not.

4. Independent of any limitation prescribed for the guidance of courts of law, equity may, in the exercise of its own inherent powers, refuse relief where it is sought after undue and unexplained delay, and when injustice would be done, in the particular case, by granting the relief asked. Courts of equity have inherent power to refuse relief after undue and inexcusable delay independent of the statute of limitations.

Marc J. Weinpel of Peetz, Peetz & Weinpel, Sidney, for appellant.

Donald J. Tedesco, Sidney, for appellees.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.

PAUL W. WHITE, Chief Justice.

Plaintiff brought this action in equity seeking to have a deed declared a mortgage and set aside, and for an accounting. Defendants filed a demurrer which was sustained. Plaintiff was allowed additional time to amend his petition, and did so. Defendants renewed their demurrer to plaintiff's amended petition, and it was again sustained. Plaintiff was allowed additional time to further amend his petition, but elected to stand on his petition. Defendants filed a motion to dismiss which was sustained. Plaintiff's motion for a new trial was overruled and he now appeals. We affirm the judgment of the District Court.

The sole issue on appeal is the correctness of the District Court in sustaining defendants' demurrer. "A general demurrer tests the substantive legal rights of parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from facts which are well pleaded. * * * If the petition states facts which entitle the plaintiff to relief, whether legal or equitable, it is not demurrable upon the ground that it does not state facts sufficient to constitute a cause of action." Pfeifer v. Ableidinger, 166 Neb. 464, 89 N.W.2d 568 (1958). On reviewing the sustaining of a demurrer, this court must treat as undisputed the facts as alleged in the petition. Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976).

Plaintiff's pleadings disclose the following transaction. On March 26, 1957, plaintiff and his mother, Anna Cizek, entered into an agreement with Joe Cizek, plaintiff's brother and the father of the defendants. This agreement recited the following facts at its onset. Plaintiff and Anna Cizek were the equitable owners of certain land located in Cheyenne County, Nebraska; an outstanding mortgage in the sum $8,000 with delinquent interest existed on this real estate at the time of the agreement; plaintiff was indebted in the sum of $40 per month for child support pursuant to a court decree which becomes a lien against this real estate as it accrues; and that Anna Cizek was 77 years old, without any independent income, and plaintiff was financially unable to maintain and carry on any farming operations.

The terms of this agreement were as follows: Plaintiff and Anna Cizek agreed to give to Joe Cizek a warranty deed for the subject real estate, subject to liens of record. Joe Cizek agreed and promised to: Pay all delinquent items on the mortgage and on child support at the time of transfer of the deed, pay Anna Cizek $25 per month, and to keep up all future payments on the mortgage, taxes, and other liens against the land.

Joe Cizek was to have full control over the operation of the farm land. Plaintiff and Anna Cizek were to have full control, possession, and the right to live in the farm buildings on the subject real estate. The contract was to last for a period of 10 years or until Anna's death, whichever was longer. Plaintiff and/or Anna Cizek were given the option at any time during the contract to reimburse Joe Cizek for amounts paid by him pursuant to the agreement, plus interest at 6 percent per annum, with credits for amounts equal to one-third of the crop raised on the subject land and any other income derived from the land exclusive of two-thirds of the growing crops. Joe Cizek was required to keep an account of all income realized from the subject real estate.

The agreement concluded: "This contract is binding on the heirs, executors, assigns and successors of the respective parties hereto and subject only to the option herein granted by the said Joe Cizek to the parties of the second part, the party of the first part, Joe Cizek, shall have exclusive control and a vested fee title in said premises subject only to the option as herein above set forth."

A copy of the deed, in addition to a copy of the agreement, was attached to plaintiff's petition. The deed, dated March 25, 1957, is absolute on its face, with no restrictions or qualifications and subject to no encumbrances other than "outstanding oil and gas lease and liens of record." Anna Cizek died on or about October 8, 1969. Joe Cizek died on or about August 7, 1972. A copy of the final decree in the estate of Joe Cizek was attached to plaintiff's petition. This document indicates that the subject real estate was included as an asset in his estate...