Enyeart v. Davis
| Decision Date | 17 February 1885 |
| Citation | 22 N.W. 449,17 Neb. 228 |
| Parties | THOMAS ENYEART, PLAINTIFF IN ERROR, v. JAMES A. DAVIS, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Washington county. Tried below before WAKELEY, J.
AFFIRMED.
Davis & Powers and W. J. Connell, for plaintiff in error.
Ballard & Walton and John D. Howe, for defendant in error.
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 the 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 one hundred dollars 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 twelve hundred dollars, as follows: three hundred dollars 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 first, 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 eight hundred dollars; 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 that at the time of pretending to purchase said farm from said Wells the plaintiff had actual notice and full knowledge of the rights of 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 22d day of March, 1883, he, the said defendant, made a tender to the said Wells of three hundred dollars, lawful money of the United States, and also, on the day 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 5th 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 six hundred dollars, the agreed price of said barn, in addition to twelve hundred dollars, the agreed price for 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 three hundred dollars 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 living--about fourteen head; that said Wells never, directly or indirectly, entered into any contract concerning the care of any sheep or the feed thereof, and never furnished the defendant any sheep but after September, 1881, the said Wells bought a one-half interest in said sheep then held by said defendant. And the plaintiff in his said reply further alleged that some time in the month of March, 1882, the defendant and the said Wells had a final settlement of all matters between them up to that date, and the said Wells, in consideration of an amount due to said defendant from said Wells and said final settlement, and the defendant entered into a written lease of said premises to the defendant from said Wells...
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