Cobbey v. Knapp

• Decision Date: 14 March 1888
• Citation: 37 N.W. 485,23 Neb. 579
• Parties: COBBEY ET AL. v. KNAPP ET AL.
• Court: Nebraska Supreme Court

23 Neb. 579

37 N.W. 485

COBBEY ET AL.

v.KNAPP ET AL.

Supreme Court of Nebraska.

March 14, 1888.

Syllabus by the Court.

A plaintiff, in replying to new matter set up in an answer, may allege any new matter not inconsistent with the petition constituting a defense to such allegations contained in the answer.

C. & S. purchased certain real estate subject to an incumbrance thereon which they agreed to pay. They afterwards tendered the money to the creditor, which he refused to accept, and brought their action to redeem, alleging and perpetuating their tender. Held to be an admission of the debt, and that the sum so tendered was due.

F., being a married man and the head of a family, conveyed certain real estate to a purchaser by an assignment of a contract of purchase. The land described in the contract was occupied by F. and his family as a homestead. The wife of F. signed the conveyance, and with F. acknowledged the same before an officer authorized to take acknowledgments of deeds. Held, (1) that the instrument was “executed and acknowledged by both husband and wife” within the requirements of section 4, c. 36, Comp. St. 1887; (2) that the provisions of said section are intended as and for a protection to the husband or wife not executing the conveyance, and not for the benefit of third parties having no priority of interest with such persons.¹

Evidence examined, and held sufficient proof of a waiver of notice of a breach of warranty.

Appeal from district court, Gage county; APPLEGET, Judge.

Action brought by J. E. Cobbey and W. S. Summers, appellees, against Indiana Knapp, C. C. Knapp, and George O. Richardson, appellants, and Jonathan Frantz, defendant, to compel specific performance of a bond for a deed given by Indiana Knapp and her husband to Jonathan Frantz, and by him assigned to the plaintiffs.

J. E. Cobbey and W. S. Summers, for appellee.

E. O. Kretsmger and Pemberton & Bush, for appellants Knapp, Richardson, and Knapp.

Griggs & Rinaker, for defendant Frantz.

REESE, C. J.

An amended petition was filed by plaintiff in the district court, alleging in substance that on the 27th day of April, 1885, and from that date to the 25th day of January, 1886, Jonathan Frantz was the legal owner of the S. 1/2 of the N. W. 1/4 of section 16, in township 3 N., of range 8 E., and that he held the same under and by virtue of a contract of sale from the state of Nebraska, bearing date of the same day; that said contract, by its terms, conveyed to him the land in fee-simple, and contained a covenant that, upon the payment of the purchase price being made according to the terms thereof, the state would execute and deliver to him a deed or patent therefor; that at said time he also had a leasehold interest to the N. 1/2 of the N. 1/2 of the S. W. 1/4 of the same section; said lease having been issued prior thereto by the state; the land being a part of the common-school land of the state; that said land is contiguous and adjoining, and that the 80 acres mentioned in the contract of purchase, and the 40 acres held by the lease, constituted all of the land owned by him; that he was a married man, and the head of a family; and that he and his family lived upon, occupied, and cultivated it as their homestead; that the value thereof was less than $2,000; that on the 8th day of May, 1885, the said Frantz, at the request and solicitation of defendants Charles C. Knapp and Indiana Knapp, to secure the sum of $350, with interest thereon at the rate of 10 per cent. per annum from the 12th day of March, 1885, until the 12th day of March, 1886,--the time of the maturity of said debt,--the said Jonathan Frantz pretended to assign unto the said Indiana Knapp the said contract of purchase; that the pretended assignment was executed by Jonathan Frantz alone, was intended as a mortgage to secure the payment of said notes and an incumbrance upon the homestead, but was not executed or acknowledged by the wife of said Jonathan Frantz, and was therefore void; that on the 8th day of May the defendant Indiana Knapp, and Charles C. Knapp, her husband, executed to Jonathan Frantz a bond, in which they bound themselves that the said Indiana Knapp would, upon the payment of the said sum of $350, with its interest, reassign said contract to Jonathan Frantz; that said pretended assignment of the contracts to Knapp by Jonathan Frantz being void, the bond executed by the Knapps to Jonathan Frantz to reassign the same was also void, being a part of the same transaction; that afterwards, on the 25th day of January, 1886, the said Jonathan Frantz and his wife, Catharine Frantz, for a valuable consideration paid by plaintiffs, and while residing upon and occupying the premises in dispute as a homestead, sold and transferred their right and title to the land and to said contract of lease and bond to plaintiffs, and that plaintiffs became and were the lawful owners and holders thereof, with full right to the possession of said contracts, and to the possession of the real estate, and that they immediately took possession thereof, and continued to hold the same; that on the 5th day of February, and at other times, the plaintiffs, acting for themselves as well as for the defendant Jonathan Frantz, and for the purpose of canceling the pretended claim of the Knapps, tendered to the Knapps $385 in gold, that being the full amount claimed by them to be owing to them by Frantz, including principal and interest upon the said alleged demand of $350, the same being a full compliance with the terms of the bond executed by the Knapps to Jonathan Frantz; that the Knapps had refused to receive the tender and reassign to plaintiffs or to Frantz the contract and lease referred to; and that the said tender had been kept good,--the money being held for the said Knapps, in case they saw proper to accept the same; that afterwards, on the 18th day of March, and after the commencement of this action, there was filed in the office of the county clerk of Gage county, for record, an instrument in writing purporting to be an assignment by defendants Knapps of all their interest in the said contract to George O. Richardson, one of the defendants, which purported to have been executed on the 12th day of March, 1886, and after the alleged tender of the $385, but that said pretended assignment to Richardson was not made in good faith; that Richardson well knew that the said Knapps had no claim in or to the said land or the said contract, and that the land was the homestead of Frantz; that the alleged pretended assignment was the result of an unlawful and illegal conspiracy and confederation between the Knapps and Richardson, and was with the intent and purpose of hindering and delaying the plaintiffs in the establishment of their rights, and for the purpose of defrauding plaintiffs out of the property, and was wholly without consideration, and with full knowledge of Richardson of all the rights of plaintiffs and of the Frantzes to the property in question; that at the time of the assignment by the said Knapps they had no interest in the real estate, of which Richardson had full knowledge, and that Richardson thereby acquired no rights. The prayer is for a specific performance of the contract of assignment, as provided in the bond of the Knapps; that the assignment from Frantz to the Knapps be declared void; that Richardson be decreed to have acquired no interest in the property, and that the title thereto may be confirmed and quieted in the plaintiffs; and for general relief. To this petition, Richardson filed an answer for himself, by which he admitted the existence of the contract, lease, and the assignment thereof by Frantz to the Knapps, and the execution of the bond by the Knapps to Jonathan Frantz. It is alleged that on the 6th of August, 1885, Jonathan Frantz, and Catherine, his wife, for and in consideration of $2,000 did sell, assign, and pledge to Richardson, as security for the said sum of $2,000, all their right, title, and interests in and to said bond executed by Knapps to Jonathan Frantz, and in and to the said land, and that Jonathan Frantz, did assign and pledge to defendant Richardson, for the same purpose, the lands referred to in plaintiffs' petition; that Frantz and wife abandoned and vacated all of said premises, and Richardson, in good faith paid to the state the money and interest due on the contract and lease since his purchase of the same from Frantz; and that the defendant Richardson paid to the Knapps the sum of $385 in cash, for an assignment of their right, title, and interest in the contract; and that on the 12th day of March, 1886, the Knapps assigned to him all their interest therein, that the pretended assignment from the Frantzes to plaintiffs was made without consideration, and was an attempt upon the part of plaintiffs to defraud defendant out of his just rights; that plaintiffs had no interest in the land and contracts, and could not have until the claim of Richardson for the said sum of money $2,000 owing to him by Frantz, and of the $385 paid for the assignment from the Knapps, was paid; that the assignment to him by the Frantzes was long prior to the pretended assignment to plaintiffs, and with both actual and constructive knowledge on the part of plaintiffs of all the rights of Richardson under said assignment. The allegations of the petition, not admitted by the answer, are denied. The prayer of this answer is that the pretended lien or claim of plaintiffs may be declared fraudulent and void, or if valid, that such lien or title be declared subsequent, and subject to the right, title, and interest of defendant, and that plaintiff may be enjoined from interfering in any way with the land, or with defendant's rights, until defendant has been paid his said claim, and the mortgage created by the assignment be satisfied.

The answer of Indiana Knapp and Charles C. Knapp was, in substance, an admission of the allegations of the...