Connolly v. Giddings

• Decision Date: 24 April 1888
• Citation: 24 Neb. 131,37 N.W. 939
• Parties: CONNOLLY v. GIDDINGS ET AL.
• Court: Nebraska Supreme Court

24 Neb. 131

37 N.W. 939

CONNOLLY

v.GIDDINGS ET AL.

Supreme Court of Nebraska.

April 24, 1888.

Syllabus by the Court.

In an action of forcible entry and detainer, where the defendant pleaded that he had erected a bake-oven and building on the lot, at a cost of $500, under an agreement with the lot-owner that he would pay him the actual cost of such bake-oven and building at any time he desired to give up possession, and that in pursuance of said contract he offered to take $400 for said improvements, which the lot-owner refused to pay, held, upon the facts stated, not to constitute a defense.

The contract above mentioned might have been performed within one year, and therefore was not void under the statute of frauds because it was not in writing; and an action could be maintained thereon and the value of the property recovered.¹

Where the owner of real estate executes an absolute deed as security for the payment of money, and receives a defeasance in writing, the transaction is a mere mortgage, and the mortgagor, in the absence of a contract to the contrary, is entitled to retain possession of the property; and a lease executed by the grantee in the deed will not entitle the lessee to possession.

Error to district court, Holt county; TIFFANY, Judge.

Action of forcible entry and detainer brought by Edwin Giddings and C. D. B. Eisaman, defendants in error, against Daniel Connolly, plaintiff in error.

H. M. Uttley, for plaintiff in error.

Cleveland & Meals, for defendant in error.

MAXWELL, J.

This is an action of forcible entry and detainer, brought by the defendants in error before the county judge of Holt county against plaintiff in error, to recover possession of certain lots in the village of O'Neill, which, he alleges, were wrongfully detained by plaintiff in error. Plaintiff in error, answering his complaint: “ First. Denies each and every material allegation therein contained, and not specially admitted. Second. He alleges that on or about May 1, 1885, he went into possession of a portion of lot 16 in block 17 in the village of O'Neill, the premises in controversy, to-wit, twenty feet off the west portion of said lot 16, under a verbal agreement with said plaintiffs, or with one of them, to-wit, Edwin Giddings, the terms of which agreement were as follows: Plaintiff in error was to erect upon said lot a bake-oven and bakery building, and was to have the use of said lot free of rent, and in further consideration of the erection of said bake-oven and bakery, defendants in error were to pay plaintiff in error the actual cost of said bake-oven and building, at any time thereafter which plaintiff in error should desire to give up possession of the same.” Plaintiff in error further alleges that, in accordance with said agreement, he built a bake-oven and bakery upon said premises at a cost of $500, and that, in accordance with the terms of said agreement, he has several times since offered to sell the same to defendants in error for $400, or at a loss of $100, and to leave said premises. Plaintif...