Garner v. McCrea
| Decision Date | 12 July 1946 |
| Docket Number | 32081. |
| Citation | 23 N.W.2d 731,147 Neb. 541 |
| Parties | GARNER v. McCREA et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Equity will grant specific performance of a parol agreement to convey real estate to another when the terms of the contract are established by evidence that is clear convincing, and satisfactory, and where it has been wholly performed by one party and its nonfulfillment would amount to a fraud on that party.
2. A claim of title to land by adverse possession, to be effective, must be proved by actual, open, exclusive, and continuous possession under claim of ownership for the statutory period of ten years.
3. Where possession of real estate is entered upon under an agreement with the owner with reference to the occupancy and not as owner, the occupant cannot assert ownership by adverse possession unless he first surrenders his possession, or by some unequivocal act notifies the landlord that he no longer holds under the agreement made.
4. One claiming ownership of land under a parol agreement to convey, and also by adverse possession, must recover upon the strength of his own title. Evidence of a possible defect in the record owner's title is ordinarily not material to the issue.
Gordon Diesing and Gilbert S. Brown, both of Omaha, for appellants.
Donald S. Krause and Pilcher & Haney, all of Omaha, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
In this action the plaintiff seeks to quiet title in himself as against the defendants, Burt M. McCrea and Mary A. McCrea, to a residence property in Omaha, Nebraska, the legal description of which is more particularly set out in the pleadings. The defendants claim to be the owners by virtue of a parol contract made with Levi D. Garner, the father of plaintiff and the owner and holder of the legal title at the time of the making of the oral agreement. Defendants also claim title by adverse possession. The trial court found for the plaintiff and quieted the title in him as against the defendants, and the defendants appeal.
The plaintiff's claim of title rests upon a deed dated February 6, 1934, from Levi D. Garner and Iona May Garner to the plaintiff, said deed having been thereafter recorded in the office of the register of deeds for Douglas County on February 7, 1934.
It appears that the property in question was owned by Levi D. Garner and occupied by him and his wife until the death of his wife on August 3, 1931. The defendants produced the testimony of James M. McCrea, their son, who testified that on August 29 1931, Levi D. Garner came to their home at about 7:30 a. m. and informed his parents, the defendants herein, that his home was in such a run-down condition that he could not rent it and that he would give the place to Burt McCrea if he would move in and repair and maintain the place, subject only to the condition that he was to have a room for himself so long as he wanted it. James M. McCrea further testified that his father expressed the fear that Levi D. Garner might remarry and want the place back, to which he answered that he did not plan to marry again, that he would give him the place and that he did not expect to get it back. James M. McCrea says that his father, Burt M. McCrea, accepted the offer and that they proceeded to move in the same afternoon. There is much evidence by this witness concerning the run-down condition of the house and the repairs that were necessary to put it in livable condition. That the defendants performed much work and expended considerable money on the house is not disputed in the record. This witness was 23 years of age at the time of the trial and ten years of age at the time the conversations about which he testified occurred.
Mary McCrea, daughter of the defendants, testified that in May, 1932, she heard her father, Burt McCrea, say to Levi D. Garner that he was thinking of tearing the porch down and that Garner replied: 'Well, Burt, the place is yours; do as you please.' It will be noted also that this witness was 20 years of age at the time of the trial and eight years of age at the time of the conversation to which she testified.
One William V. Rushlau testified that he had known Levi D. Garner for a good many years and that Garner had told him he had given the property to McCrea.
The evidence shows also that Levi D. Garner remarried in January 1934, and moved out of the premises. A few days later, February 6, 1934, the property was deeded to plaintiff, the son of Levi D. Garner; Garner's new wife joining in the execution of the deed.
Plaintiff testified that he attended the funeral of his mother on August 6, 1931, and that on the day following he and his father, Levi D. Garner, called at the McCrea home and made an offer to Burt M. McCrea to the effect that he could move his family into the Garner home, that the McCreas should pay the equivalent of $40 per month as rent, the taxes to be paid in cash and the balance to be paid by work, repairs and upkeep on the property and by the furnishing of a room for the use of Levi D. Garner. Plaintiff says the McCreas agreed to the offer. Plaintiff testified that he never again talked to the McCreas about the deal and the only correspondence was a letter he wrote them in April 1943, in which he told them of his intention to sell the property.
On April 9, 1943, Grayson Garner wrote the Amos Grant Realty Company with reference to a listing of the property for sale. Amos Grant says that he called on the McCreas pursuant to plaintiff's letter and that Burt M. McCrea told him he had lived there since 1931 and had kept the place in repair. He testified also that McCrea said that Levi D. Garner had told him he could live in the premises for five years after his death and that he would insist upon a settlement before moving out. Grant testified that McCrea made no claim of ownership at this time.
There is evidence that plaintiff employed Donald S. Krause as his attorney. Krause testifies that he called upon the McCreas on two occasions. In the first conversation McCrea told him that he had an agreement with Grayson C. Garner, the plaintiff, whereby he took care of all maintenance and paid the taxes in lieu of rent. About three weeks later Krause says he called on them again and that he was told by Burt McCrea that he was to have five years free rent after Levi D. Garner's death and suggested a settlement of $1,800. Krause also says he knew of no claim of ownership by the McCreas until March 28, 1944, when McCrea reported his reasons to the Office of Price Administration for refusing to give possession.
The record shows that Levi D. Garner paid the taxes on the property to and including 1934. From 1934 to 1940, McCrea paid the taxes and took receipts in the name of Levi D. Garner as owner. From 1940 to the date of trial, McCrea paid the taxes and took receipts in the name of Grayson C. Garner as owner. Levi D. Garner paid the insurance on the property to 1934 and plaintiff paid it thereafter. There is evidence in the record that water and gas applications made to the Metropolitan Utilities District by Mrs. Burt M. McCrea showed Levi D. Garner as owner and Burt M. McCrea as tenant. An application for...
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