Enyeart v. Davis

Decision Date17 February 1885
Citation17 Neb. 228,22 N.W. 449
PartiesENYEART v. DAVIS.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Error from Washington county.

Davis & Powers and W. J. Connell, for plaintiff.

Ballard & Walton and John D. Howe, for defendant.

COBB, C. J.

This is an action in the nature of an action of ejectment, brought by the defendant in error against the plaintiff in error to recover a certain tract of land. The petition is in usual form in such case. The plaintiff in error, as defendant, filed an answer in the nature of a cross-bill, denying the title and right of possession of the plaintiff, and alleging that he, the said defendant, was in the possession of the said land by virtue of a certain written contract and lease of said land, executed to him by one H. E. Wells, who was then the owner of said land, for the term of five years from and after the first day of January, 1881, at a rental of $100 per annum, and which said contract and agreement contained the further provision that if, at any time during said five years, the said defendant should see fit to purchase said premises, he should have the right to do so, at the agreed price of $1,200 cash, and the remainder in notes secured by mortgage on said land, with interest at the rate then obtained by said Wells on other mortgage loans; that said defendant was and had been in the possession of said land ever since March 1, 1881, cultivating the same and living thereon with his family, and making valuable and permanent improvements thereon, with a view and intention, and for the purpose, of making purchase of said farm under and in pursuance of said contract and agreement, and during all of said time making payment of the rent and taxes as specified in said agreement, or as required by the said Wells; that the provision of said contract, so far as the agreement of the said Wells to sell said farm to plaintiff at any time during said term of five years is concerned, the same remains in full force and effect, and has never been changed, modified, or revoked; that relying on said contract for the sale of said land to him by said Wells, and with a view and intention of purchasing said farm, he made certain valuable improvements thereon, which are therein enumerated, which was done with the knowledge and approval of the said Wells, and at a cost to said defendant of $800; that during all the time that defendant had occupied the said farm, the plaintiff has been a near neighbor of defendant, living within one-half mile of said farm, and a frequent visitor thereon, and that at several times during the occupation of said farm by said defendant, the said plaintiff was fully informed and well knew of the terms of said contract with said Wells, and at the time of pretending to purchase said farm from said Wells, the plaintiff had actual notice and full knowledge of the rights of the said defendant in the premises, and well knew that said defendant was intending to buy said farm within the time fixed by said contract;that on or about the twenty-second day of March, 1883, he (the said defendant) made a tender to the said Wells of $300 lawful money of the United States, and also on the ______ of April, 1883, he made a like tender to said plaintiff, and also proposed and offered to both said Wells and plaintiff to make and execute the proper note and mortgage to secure any balance due from said defendant necessary to cover the purchase price of said farm, and duly demanded from said Wells and from said plaintiff a deed of said land, which tender and offer defendant renewed and kept good, and that the said Wells and the said plaintiff both refused said tender, and declined to accept or consider the said offer, and absolutely and unconditionally refused to make to said defendant a deed for said farm.

Defendant further alleged that while he was occupying said farm,--to-wit, on or about the fifth day of September, 1881,--at the special instance and request of said Wells, he received upon said farm 240 head of sheep belonging to said Wells, to feed and care for said sheep; the said Wells agreeing that for such care, feed, etc., said defendant should receive the full and fair value of said feed, expenses, and care, which defendant gave and bestowed until March 17, 1882; the items of which said feed, care, and expense, which said Wells agreed to pay, and which defendant alleges are fair and reasonable as charged, are contained in Exhibit B, attached to and made a part of said answer. And defendant further alleged that, for the purpose of properly housing the said sheep, it became and was necessary to build a certain barn on said farm, which, accordingly, was erected; it being agreed and understood that upon final adjustment of all matters in difference between defendant and said Wells, that said Wells be allowed and credited with the sum of $600, the agreed price of said barn, in addition to $1,200, the agreed price of said land. The said defendant therefore prayed that an accounting might be had of the balance due from him in the premises, and that upon the payment of $300 cash, and executing a mortgage for the remainder, that said plaintiff and said Wells be required to convey to defendant the said land, and the improvements thereon, which said defendant prayed might be adjudged as held in trust for him, (the said defendant,) and for general relief.

The plaintiff filed a reply to the said answer and cross-bill of the defendant, in which he denied the several allegations therein, except as in the said reply are specifically admitted, and such as were substantially set out in the petition. He admitted that the said Wells leased said premises to the defendant for the term of years, as set out in the defendant's answer, but he denied that said Wells ever agreed to sell the same to defendant, as set forth in his said answer, and denied that the said Wells ever agreed to pay defendant for taking care of said sheep, or furnishing food for the same, and denies that he is indebted to said defendant therefor; and plaintiff alleged the truth to be that some time in the month of September, 1881, the defendant and one Edwin Brooks entered into a contract, in substance, that the defendant should take the sheep named in defendant's answer, and keep the same five years, without any expense to said Brooks, and, annually, the said defendant should return to the said Brooks one-half of the wool and one-half of the increase, and the original number of sheep at the end of five years, and the said defendant was to have one-half of the wool and increase thereof, in full, for his pay for the care and feed of said sheep; that the said defendant so negligently and carelessly cared for said sheep that they nearly all died, and by reason thereof the said defendant and the said Brooks canceled said contract, and said Brooks took away the balance then...

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12 cases
  • Hallam v. Commerce Mining & Royalty Co., 288.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 27 Marzo 1931
    ... ... Abrams (C. C.) 181 F. 847; Diamanti v. Aubert, 68 Utah, 582, 251 P. 373, 374; Brown v. Linn Woolen Co., 114 Me. 266, 95 A. 1037, 1038; Enyeart v. Davis, 17 Neb. 228, 22 N. W. 449; Coe v. Hobby, 72 N. Y. 141, 146, 28 Am. Rep. 120; Fleischner v. Citizens' Real Estate & Inv. Co., 25 Or. 119, 35 ... ...
  • Whipple v. Fowler
    • United States
    • Nebraska Supreme Court
    • 18 Septiembre 1894
    ... ... Enyeart v. Davis, 17 Neb. 228, 22 N. W. 449;Willard v. Foster, 24 Neb. 213, 38 N. W. 786;Richardson v. Doty, 25 Neb. 424, 41 N. W. 282;Ward v. Parlin, 30 ... ...
  • Whipple v. Fowler
    • United States
    • Nebraska Supreme Court
    • 18 Septiembre 1894
    ... ... to the court without a jury, is not sufficient ground for the ... reversal of the case. ( Enyeart v. Davis , 17 Neb ... 228, 22 N.W. 449; Willard v. Foster , 24 Neb. 205, 38 ... N.W. 786; Richardson v. Doty , 25 Neb. 420, 41 N.W ... 282; ... ...
  • Lihs v. Lihs
    • United States
    • Nebraska Supreme Court
    • 5 Marzo 1895
    ... ... intervention of a jury will not be reversed for the admission ... of incompetent or irrelevant testimony alone. [44 Neb. 147] ( ... Enyeart v. Davis, 17 Neb. 228, 22 N.W. 449; ... McConahey v. McConahey, 21 Neb. 463, 32 N.W. 300; ... Willard v. Foster, 24 Neb. 205, 38 N.W. 786; ... ...
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