Dworak v. More

Citation41 N.W. 777,25 Neb. 735
PartiesDWORAK ET AL. v. MORE ET AL.
Decision Date13 February 1889
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. An execution issued on an ordinary judgment at law, if levied on a mere equity in real estate, the debtor not being in possession and the legal title being in the name of another, will not pass the title of such equitable owner to the purchaser.

2. A power of attorney which fails to authorize the donee of the power to convey property of the principal is not sufficient to justify the making of a deed under such power, and thereby convey the title of the principal.

3. A stipulation set out in a decree of divorce, held sufficient to show community of property between the divorced parties. Objections to a transcript of a judgment of another state that it contains no certificates of the presiding judge “that the attestation is in due form of law” must be specific.

4. In an action of ejectment, where there is proof tending to show that the defendants were in possession under an execution sale made several years before the bringing of the suit, and that they had made certain improvements on the real estate, paid taxes thereon, etc., held, that before a writ of restitution will be issued the plaintiffs below must pay the value of such improvements, and the amount paid for taxes, with the interest thereon.

Error to district court, Douglas county; HOPEWELL, Judge.Breen & Duffie, for plaintiffs in error.

George F. Brown, for defendants in error.

MAXWELL, J.

This action was brought in the district court of Douglas county by the defendants in error against the plaintiffs in error to recover the possession of lots 5, 6, 7, 8, 9, and 10, in block 482, in Grand View, in the city of Omaha. On the trial of the cause, a jury was waived, and the cause tried to the court, which found in favor of the defendants in error. A motion for a new trial having been filed and overruled, judgment was entered in favor of the defendants in error.

The testimony shows that in 1857 the county commissioners of Douglas county, for the use and occupation of the town of Grand View, pre-empted 262.30 acres of land. In April, 1859, a patent for said land was issued to the trustees of Grand View, in trust, etc. In March of that year, Andrew B. More, chairman of the board of trustees of said town of Grand View, conveyed the lots in controversy to M. A. J. More, his wife, the consideration expressed in the deed being $29. In February, 1865, Andrew B. More, in Douglas county, made a power of attorney, as follows: “Know all men by these presents, that I, Andrew B. More, of the city of Omaha, county of Douglas, and territory of Nebraska, have made, constituted, and appointed, and do by these presents make, constitute, and appoint, my loving wife, Mary A. J. More, of the same place, aforesaid, to be my sufficient and lawful attorney for me, and in my name to bargain, sell, grant, release, and convey to such person or persons, and for such sum or sums of money, for cash or upon such credit, as to my said attorney shall seem most for my advantage and profit, and upon such sale or sales convenient and proper deeds, such covenant or covenants, general or special, of warranty, quitclaim, or otherwise, as to my said attorney shall be deemed expedient, in due form of law, as my deed or deeds, to make, seal, deliver, and acknowledge, and for me, and in my name, to accept and receive all and every the sum or sums of money (or other consideration or considerations whatsoever) which shall be coming to me, the amount of said sale or sales, and, upon the receipt thereof, suitable acquittance or acquittances, in my name and stead, to make, seal, and deliver; and giving generally to my said attorney full power and authority touching the premises to execute, proceed, and finish in all things in as ample a manner as I might do if personally present,--hereby ratifying and confirming all lawful acts done by my said attorney by virtue hereof.” This power was duly acknowledged and recorded in some of the counties of Iowa, where More seems to have had real estate, and perhaps other property.

On the 22d day of May, 1868, More and wife conveyed the lots in question, with other lots, to one Kate M. Bryant, the consideration expressed in the deed being $6,000. On the next day Kate M. Bryant conveyed the lots in controversy, with other lots, to M. A. J. More, the wife of Andrew B. More, the consideration expressed in the deed being $6,500. On the 29th day of April, 1875, Mary A. J. More, for herself and husband, conveyed the property in question, by a quitclaim deed, to John More and Alexander P. More, brothers of Andrew B. More, the consideration expressed in the deed being the sum of $2,000. On the 14th day of June, 1886, John More and wife conveyed the lots in dispute, by a quitclaim deed, to Andrew B. More. There is a stipulation in the record “that after the execution of the deed by the plaintiffs Mary A. J. More and Andrew B. More to John More and Alex. P. More, dated April 29, 1875, and recorded in Book 18, page 95, of Douglas county records, embracing, with others, the lots in controversy in this suit, that the said John More, so far as the Douglas county records show, did not convey his interest in said lots to any one prior to the execution, by him and wife, of their alleged deed to said Andrew B. More, dated June 14, 1886, and recorded in Book 68, page...

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3 cases
  • Westervelt v. Hagge
    • United States
    • Nebraska Supreme Court
    • April 10, 1901
    ... ... section 476 of the Code, under the title ... "Executions," only the legal title of the judgment ... debtor can be levied on. Dworak v. More, 25 Neb ... 735; Connell v. Galligher, 36 Neb. 749 ...          James ... H. Woolley, Fred W. Ashton, Charles G. Ryan, W. S ... ...
  • McPherson v. Commercial Nat. Bank
    • United States
    • Nebraska Supreme Court
    • April 17, 1901
    ...ruling upon an objection which is so indefinite as to be unintelligible. Gregory v. Langdon, 11 Neb. 166, 7 N. W. 871;Dworak v. More, 25 Neb. 735, 41 N. W. 777;Rupert v. Penner, 35 Neb. 587, 53 N. W. 598, 17 L. R. A. 824;Maul v. Drexel, 55 Neb. 446, 76 N. W. 163;Krull v. State, 59 Neb. 97, ......
  • Dworak v. More
    • United States
    • Nebraska Supreme Court
    • February 13, 1889

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