Dawson v. McFaddin

• Decision Date: 28 September 1887
• Citation: 22 Neb. 131,34 N.W. 338
• Parties: DAWSON AND OTHERS v. MCFADDIN AND HUSBAND.
• Court: Nebraska Supreme Court

22 Neb. 131

34 N.W. 338

DAWSON AND OTHERS

v.MCFADDIN AND HUSBAND.

Supreme Court of Nebraska.

September 28, 1887.

Syllabus by the Court.

Equity protects a parol gift of land equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property; following Neale v. Neales, 9 Wall. 1.¹

Appeal from Johnson county; BROADY, Judge.

S. P. Davidson, for plaintiffs.

T. Appleget & Son, for defendants.

COBB, J.

This cause comes up on appeal from the district court of Johnson county. The following statement of the case I adopt from the brief of appellants as entirely fair, and sufficiently full for the purpose of this opinion:

On February 5, 1885, plaintiffs filed their petition, alleging that on or about January 11, 1881, defendant Eleanor J. McFaddin, then Eleanor J. Dawson, held and controlled divers large sums of money and other property in which plaintiffs owned large interests; and for the purpose of distributing to plaintiffs a portion of the property aforesaid belonging to them, or in which they were interested, and in payment of services performed by plaintiffs for defendant at her request, defendant purchased the E. 1/2 of the N. E. 1/4, and the E. 1/2 of the S. W. 1/4, of section 25, in township 5 N., of range 9 E., in Johnson county, Nebraska, and paid for it out of the said money and property so belonging to plaintiffs; and at the same time agreed to convey same to said William J. Dawson, for himself and his co-plaintiffs, as soon as he became of age; and on the day last aforesaid said defendant delivered possession of said land to plaintiff, William J. Dawson, for himself and his co-plaintiffs, in pursuanceof said agreement, and they have remained in exclusive possession thereof ever since. Said plaintiffs have punctually and strictly performed all and singular the agreements and undertakings on their part to be kept and performed, and have carefully cared for and guarded and improved said land by virtue and in pursuance of said agreement. Plaintiffs aver that, when said land was so purchased by defendant, it was so purchased for the use and benefit of plaintiffs, or two of them; and, being brothers and sister, they have agreed to share the same equally, and they are the real owners of said land, while defendant holds the bare legal title for the purpose aforesaid. Defendant T. James McFaddin has since married defendant Eleanor J. McFaddin, well knowing all the above facts. Plaintiff William J. Dawson became of age May 7, 1881, and George T. Dawson became of age April 5, 1884, and Fannie M. Dawson became of age December 9, 1884. Plaintiffs have frequently requested defendants to execute and deliver the deed conveying said land to them, which defendants have heretofore and still do refuse to do. Plaintiffs are entirely without remedy, unless this court will take cognizance of this whole matter, and grant relief. Plaintiffs pray that defendants be enjoined from prosecuting any suits to oust them from said land, and from molesting plaintiffs in the use and occupancy thereof; that defendants be required to specifically perform their above-mentioned agreement, and execute and deliver a good and sufficient warranty deed conveying said land to plaintiffs, and, in default of compliance with said requirement, that the decree of court operate as such conveyance; and that plaintiffs may have general relief.

Defendant Eleanor J. McFaddin, on the eighteenth day of November, 1885, filed her answer, in which she alleges that she agreed to convey the said land only when herself and other creditors of one Ralph Dawson were paid the claims they held against him, and that said claims have not been paid; also that the notice to quit said premises, and the threat to oust them, were not in violation of any agreement between plaintiffs and defendants. The balance of said answer consists wholly of specific denials of the other allegations of the petition, and the prayer of the answer is only that defendants may go hence without day. Plaintiffs' reply denies each and every allegation in said answer contained.

The cause was tried at the November term, 1886. The court found that there was no sufficient contract upon which equity would compel specific performance, but under assurance to plaintiffs by defendant that she would let them have the land, and on the faith thereof, plaintiffs put on the land improvements of the value of $1,100, and that plaintiffs have received rents and profits therefrom to the amount of $400, leaving a balance on the land for said improvements of $700, which the court finds is an equitable lien on the land described in the petition, which defendant shall pay, as doing equity before getting affirmative action of the court to do her equity, and upon doing which the title to the land will be perfected in her, and a writ of possession awarded to put her in possession of said land. Upon default of her paying said $700 and interest from this date, within 90 days from this date, plaintiff shall remain in possession of said land until said amount and interest shall have been paid by the rents and profits thereof, and that each party pay one-half of the costs herein. Decree was entered in pursuance of said findings, and plaintiffs appealed.

The evidence in the case, as presented to this court by the bill of exceptions, is not as clear in all respects as might be desired; but from its careful examination the following facts may be gathered as sufficiently proved:

The plaintiffs and female defendant are brothers and sisters; the latter much older than the former. Some time prior to the year 1879 the parties, as well as their father, Ralph Dawson, and their mother, resided in the city of Brooklyn, New York, at which place and the city of New York the said Ralph Dawson was the owner of a large amount of valuable and productive real property.He was also at the same time largely indebted, and probably otherwise involved. This property in New York city and Brooklyn the said Ralph Dawson conveyed to and placed in the possession of the defendant Eleanor J., his daughter, as he expressed it when on the stand as a witness, for her “to pay my debts, for fear of the foreclosure of mortgages, and to try and get them put off a little while until she could try and sell them and pay off.” He also adds, in the same sentence: “And she sold by degrees, and paid off.” It was during the existence of this trust that the defendant Eleanor J. bought the land in question, and placed the plaintiffs, or some of them, in possession of it. It was probably the theory upon which this action was commenced that the land, having been bought with this trust fund...