Ford v. Steele

• Decision Date: 10 March 1891
• Citation: 48 N.W. 271,31 Neb. 521
• Parties: C. L. FORD ET AL. v. T. L. STEELE ET AL
• Court: Nebraska Supreme Court

48 N.W. 271

31 Neb. 521

C. L. FORD ET AL. v. T. L. STEELE ET AL

Supreme Court of Nebraska

March 10, 1891

ERROR to the district court for Pawnee county. Tried below before BROADY, J.

AFFIRMED.

A. H Babcock, and C. E. White, for plaintiffs in error, cited Hunt v. Rousmaniere, 1 Pet. [U. S.], 1; Colson v Thompson, 2 Wheat. [U. S.], 336; King v. Thompson, 9 Pet. [U. S.], 204; Carr v. Durval, 14 Id., 77; Lee v. Dodge, 5 Wall. [U. S.], 808; Barr v. Lapsley, 1 Wheat. [U. S.], 151; Brashier v. Gratz, 6 Id., 528; Bank v. Hagner, 1 Pet. [U. S.], 455; Eaton v. Eaton, 15 Wis. 284; Smith v. Wood, 12 Wis. 425; Jones v. Tyler, 6 Mich. 363; Nickerson v. Nickerson, 127 U.S. 668; Hennessy v. Woolworth, 128 Id., 438.

G. M. Humphrey, J. K. Goudy, and H. C. Lindsay, contra, cited: Neale v. Neale, 9 Wall. [U. S.], 1; Dawson v. McFaddin, 22 Neb. 131; Pomeroy's Spec. Per., 184-6; McLain v. School Directors, 51 Pa. 196; Fairfield v. Barbour, 16 N.W. [Mich.], 230; Irwin v. Dyke, 1 N.E. [Ill.], 913; Story v. Black, 1 P. [Mont.], 1; Harris v. Richey, 56 Pa. 398; Syler v. Eckhart, 1 Bin. [Pa.], 380; Freeman v. Same, 43 N.Y. 34; Guynn v. McCauley, 32 Ark. 97; Hardesty v. Richardson, 22 Am. Rep., 57; Sowers v. Weaver, 84 Pa. 267; Welch v. Whelpley, 4 Am. St. Rep. , 810.

OPINION

MAXWELL, J.

This action was brought by the plaintiffs against the defendants to recover possession of the following described premises situated in Pawnee county, to-wit: The east third of the north half of the north-west quarter, and the east third of the north half of the south half of the northwest quarter of section 5, township 3, range 9 east, containing about forty acres.

It is alleged that the defendants, since the first day of March, 1886, have unlawfully kept and still keep the plaintiffs out of possession thereof, and of the rents and profits to the amount of $ 300. The defendants filed an answer to said petition, alleging that the legal estate the plaintiffs have in and to the above described premises is subject to the equitable estate the defendants have in said lands, deny that the plaintiffs are entitled to possession, and deny that they have kept and still keep plaintiffs out of the lawful possession thereof; and deny that defendants are liable for rents and profits to plaintiffs.

They allege in their answer that the plaintiffs are the parents of the defendant Mary Steele, the wife of Thomas L. Steele; that on or about the 1st day of November, 1878, the plaintiffs, being the owners in fee of 120 acres of land, of which the above described land is a part, and being desirous of having these defendants live near them, entered into a parol agreement with said defendants to give to the defendant Mary Steele the land described in plaintiffs' petition, for and in consideration that the defendants should move from Illinois to Nebraska, settle upon, cultivate, and improve said land and make their home upon the same; that defendants, relying upon the promises of plaintiffs to give the said land to Mary Steele, and within a reasonable time to convey the same to her, in good faith complied with all the conditions and obligations of said agreement on their part to be performed; that on or about the 15th of November, 1878, defendants moved into the possession of said premises with full knowledge and consent of plaintiffs and at their request; that said defendants have held the same ever since and now reside thereon as their home; that while in possession they have made valuable and lasting improvements thereon to the value of $ 540; that said improvements were made in good faith, relying upon the promises of the plaintiffs to give and convey the same to the defendant Mary Steele; that they have paid taxes on said land to the amount of $ 26. The prayer of the answer is for a conveyance of said lands, etc.

The reply is a denial and answer in confession and avoidance. The issues were tried to a jury, which returned the following verdict: "We, the jury in this case, being duly impaneled and sworn, do find for the defendants, Thomas Steele and Mary Steele, and all the affirmative facts are true as stated in defendant's answer."

A motion for a new trial was overruled and judgment was rendered on the verdict.

The plaintiffs claim that the verdict is not sustained by the evidence. There is but little conflict in the...