Clark v. Fleischmann

• Decision Date: 07 October 1910
• Docket Number: 16,487
• Citation: 127 N.W. 914,87 Neb. 609
• Parties: ETHEL CLARK, APPELLEE, v. JACOB FLEISCHMANN ET AL., APPELLANTS
• Court: Nebraska Supreme Court

127 N.W. 914

87 Neb. 609

ETHEL CLARK, APPELLEE, v. JACOB FLEISCHMANN ET AL., APPELLANTS

No. 16,487

Supreme Court of Nebraska

October 7, 1910

APPEAL from the district court for Cass county: LEANDER M PEMBERTON, JUDGE. Reversed.

REVERSED.

A. N Sullivan and Matthew Gering, for appellants.

Byron Clark and William A. Robertson, contra.

ROSE J. ROOT, J., not sitting.

OPINION

ROSE, J.

The petition contains two counts. The first is ejectment for a tract of land in Cass county, and the second is for the rents and profits thereof for four years prior to the bringing of the suit. Plaintiff claims the land under the will of her father, John W. Clark, who died February 15, 1889. She traces the title to testator in the following manner. The realty described was formerly school land, and was purchased from the state by M. J. Foote under a contract dated February 16, 1882. By mesne assignments testator acquired the interests of Foote through H. A. Bragg, and paid the remainder of the purchase price December 24, 1888. The state deeded the land to "John W. Clark, his heirs and assigns," February 23, 1889, a date subsequent to his death. That the deed was executed after the death of the grantee named therein is not material to this controversy, however, for the reason that both plaintiff and defendants assert rights under it.

In resisting the suit, the position of defendants, for present purposes, may be summarized as follows: John W. Clark, from 1884 until his death February 15, 1889, was a partner of Thomas M. Howard. In the firm name of Clark & Howard they were engaged in the real estate and loan business at Weeping Water. The firm for its own benefit, with its own money, bought the school-land contract from H. A. Bragg, and for convenience in transacting its business took the assignment in the name of John W. Clark. Under Clark's will, after his death, his brother, Thomas K. Clark, became executor and trustee, and as such obtained from the county court a license to sell, and afterward sold to Howard, testator's partnership interests, including the school-land contract. Through this sale the executor realized the full amount of testator's interest in the land. Later Thomas K. Clark purchased from Howard, the surviving partner, an interest in the partnership, which was afterward conducted in the name of the new firm of Clark & Howard. Jacob Fleischmann, defendant, bought the land from the new firm for $ 2,535, December 16, 1889, procured a deed February 28, 1890, from Thomas K. Clark, executor and trustee of the estate of John W. Clark, deceased, took possession under his deed March 1, 1890, and has been in possession ever since. In the meantime he made improvements to the extent of $ 5,000. The facts are more fully stated in an opinion on a former appeal. Clark v. Fleischmann, 81 Neb. 445, 116 N.W. 290.

The case has been twice tried in the district court. At the first trial the suit was dismissed after the parties had introduced their proofs. From the judgment of dismissal plaintiff appealed to this court, where it was held that the evidence was insufficient to show the land was the property of the partnership, and that, if it was not, the title vested in plaintiff under the will. In the opinion, however, it was observed: "It may be that evidence can be produced on another trial showing that the decedent's interest in the copartnership was sold and that the land in controversy was a part of the assets of the firm. If such was the case, and the sale received the approval of the probate court, that, of course, would divest the plaintiff of any interest in the land. The estate has not yet been settled. The executor has not made his final report or received his discharge. If the land in controversy has been sold as a part of the assets of the copartnership, the executor on final settlement must account for the proceeds." Clark v. Fleischmann, 81 Neb. 445, 456, 116 N.W. 290. Upon a retrial in the district court plaintiff recovered a judgment for the land and for rents and profits thereof in the sum of $ 1,580.25. The case is now presented on an appeal by defendants.

At the second trial in the district court the proofs adduced at the first were received in evidence and defendant Jacob Fleischmann was re-examined as a witness in his own behalf. In addition defendants offered the deposition of Thomas M Howard, whose testimony, among other things, tends to prove: For three years prior to the death of John W. Clark, the latter and Howard were partners at Weeping Water under the firm name of Clark & Howard, and as such were dealers in real estate and farm loans. In the name of John W. Clark the firm took an assignment of the school-land contract from H. A. Bragg. The purchase was made with firm money and the school-land contract was firm property, though the assignment was taken in Clark's name. The land was sold by the new firm of Clark & Howard to Jacob Fleischmann and deeded to him by Thomas K. Clark, executor and trustee of the estate of John W. Clark, deceased, the latter having taken the assignment in his own name when acting for the partnership. Howard received one-half of the purchase price, the full amount of which was paid to the firm. One question was answered by the witness Howard as follows: "After the death of John W. Clark and the appointment of T. K. Clark as executor and trustee, I purchased from said executor the entire interest of John W. Clark in the firm's business and partnership property, and paid him for it. The contract for said school-land was included in this purchase. After I bought Clark's interest, a new partnership was formed between ...