Fike v. Lower

• Decision Date: 21 April 1923
• Docket Number: 22335
• Citation: 193 N.W. 266,110 Neb. 209
• Parties: E. E. FIKE, RECEIVER, APPELLEE, v. RAY A. LOWER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

193 N.W. 266

110 Neb. 209

E. E. FIKE, RECEIVER, APPELLEE, v. RAY A. LOWER ET AL., APPELLANTS

No. 22335

Supreme Court of Nebraska

April 21, 1923

APPEAL from the district court for Saunders county: GEORGE F CORCORAN, JUDGE. Affirmed.

AFFIRMED.

Jamieson O'Sullivan & Southard, for appellants.

Stewart Perry & Stewart and Robert Van Pelt, contra.

Heard before MORRISSEY, C. J., LETTON, DEAN and DAY, JJ.

OPINION

DAY, J.

This action was brought by E. E. Fike as receiver of the Valparaiso State Bank, hereinafter referred to as the bank, against Ray A. Lower, Zetta Lower, his wife, and William C. Elmelund. The purpose of the action was to have a certain warranty deed to lots 1 and 2, in block 12, in the village of Valparaiso, executed by Ray A. Lower and his wife, Zetta Lower, on October 24, 1919, to William C. Elmelund, and by the latter by quitclaim deeded to the bank, declared to be a mortgage in favor of the bank; that an accounting be taken of the amount owing by Ray A Lower to the bank; and that the deed, if found to be a mortgage, be foreclosed.

Ray A. Lower admitted in his answer that he and his wife, Zetta Lower, executed a warranty deed conveying to said William C. Elmelund the property above described, and that the deed was filed for record November 12, 1919; that on the 20th day of September, 1919, for a valuable consideration he conveyed to Zetta Lower, his wife, the property above described, and that she thereby became vested with the title to said property; that on October 24, 1919, the said Zetta Lower entered into a contract with the said Elmelund, whereby he agreed to purchase the said lots for the sum of $ 15,000, and that in pursuance of such agreement the deed of October 24, 1919, was signed by himself and said Zetta Lower; and that said Elmelund has failed to pay any part of the consideration for the deed.

Zetta Lower, in a cross-petition, alleged that on October 24, 1919, the lots above described were her separate and individual property, having been conveyed to her by Ray A. Lower, her husband, for a valuable consideration on September 20, 1919, and that the deed was recorded on May 18, 1920. She further alleged that on October 24, 1919, she sold the premises to William C. Elmelund for an agreed sum of $ 15,000; that a deed was executed by her husband and herself to said Elmelund; that the consideration of $ 15,000 was never paid by Elmelund; that the agreement to pay said sum on the part of Elmelund was not made in good faith, but for the purpose of wrongfully and deceitfully obtaining from her the title to said property, and of defrauding her out of the same; that after obtaining the title to the property the said Elmelund transferred the same to the Valparaiso State Bank; that said bank was not a bona fide purchaser for value, and had notice and knowledge of her rights to said premises. She prayed that the deed of October 24, 1919, be canceled and held for naught; that the deed from Elmelund to the bank be also canceled, and that the title to said lots be quieted and confirmed in her.

Elmelund also filed a cross-petition, in which he claimed an interest in the lots subject to the claim of the bank thereto; but, as no appeal has been taken by him from an adverse judgment against his claim in his cross-pet...