Giles v. Sheridan

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before WHITE; SPENCER
• Citation: Giles v. Sheridan, 179 Neb. 257, 137 N.W.2d 828 (Neb. 1965)
• Decision Date: 05 November 1965
• Docket Number: No. 36095,36095
• Parties: Minnie GILES, Appellee, v. John V. SHERIDAN, Appellant, Impleaded with Harley Giles and Arnetta M. Giles, husband and wife et al., Appellees.

Page 828

137 N.W.2d 828

179 Neb. 257

Minnie GILES, Appellee, v. John V. SHERIDAN, Appellant Impleaded with Harley Giles and Arnetta M. Giles, husband and wife et al., Appellees.

No. 36095.

Supreme Court of Nebraska.

Nov. 5, 1965.

Syllabus by the Court

1. Where a conveyance of property is made to two or more persons and the instrument is silent as to the interest which each is to take, the rebuttable presumption is that their interests are equal.

2. An estate in joint tenancy can be destroyed by any act of one joint tenant which is inconsistent with joint tenancy, and such act has the effect of destroying the right of survivorship incidental to it.

3. Where one of two joint tenants severs a joint tenancy, it extinguishes the right of survivorship. Where, however, one of three or more joint tenants destroys one or more of the necessary coexistent unities, this operates as a severance of the joint tenancy as to the share held by him, but the other joint tenants continue to hold their interests in joint tenancy.

4. The purchase by a tenant in common or a joint tenant of an outstanding title to or the payment of an encumbrance on the joint estate which inures to the common benefit and entitles the purchaser or payer to contribution.

Barney, Carter & Buchholz, Herbert M. Brugh, Lincoln, for appellant.

G. Porter Putnam, Merlin L. Springer, Lewis R. Ricketts, Lincoln, for appellees.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

SPENCER, Justice.

This is an equitable action to determine and establish the interests of the parties in Lot 3, Randolph Terrace Third Addition to Lincoln, Lancaster County, Nebraska, on which a duplex is located, and for partition.

The plaintiff is Minnie Giles, who at the time of the acquisition of said property was 83 years of age. The initial defendants were John V. Sheridan and Helen M. Sheridan, husband and wife, who will hereafter be referred to as defendant and Helen. Helen was a niece of plaintiff. The petition was filed May 27, 1963. Helen died February 23, 1964 and was survived by defendant and their three children, Barbara Littlejohn, Sally Sheridan, and James Sheridan, the last two being minors. The deed to the property in question is dated October 31, 1962, and describes as grantees Minnie Giles, a single person, and John v Sheridan and Helen M. Sheridan, husband and wife, as joint tenants and not as tenants in common. Subsequent to the filing of the action, by a warranty deed dated November 9, 1963, plaintiff conveyed an undivided 1/20 of her interest in said property, subject to a life estate, to a nephew, Harley Giles.

The case went to trial on the third amended petition, which was filed April 28, 1964, and the cross-petition of the defendant, filed June 4, 1964. Service had been perfected on the minor children of Sheridan, Barbara's spouse, and Harley Giles and his spouse, and a guardian ad litem was appointed for the minor defendants. Trial was held July 21, 1964, and a decree was entered March 58 1965, confirming the shares of the parties and appointing a referee. Defendant had perfected an appeal to this court.

The petition of the plaintiff seeks to establish the interests of the parties on the basis of the contribution made to the purchase price of the property. Plaintiff attempted to prove that Helen came to her home in Hastings in 1961 to induce plaintiff to buy an apartment in Lincoln for joint occupancy and agreed to pay one-half of the costs thereof, and that pursuant to that agreement Helen found the duplex and the plaintiff signed an offer to purchase after looking it over with the Sheridans. This testimony was excluded as a transaction with a deceased, within the provisions of section 25-1202, R.R.S.1943, the dead man's statute.

It is undisputed that the offer to purchase, dated August 25, 1962, which was signed only by the plaintiff, was prepared by the defendant. The purchase price was $33,325. Plaintiff deposited $1,000 with the offer, which was accepted, and agreed to assume a mortgage to the First Federal Savings and Loan Association of Lincoln in the approximate sum of $20,500, and to pay the balance on or before November 1, 1962. The sale was consummated October 31, 1962. Plaintiff paid $12,121.04 at that time to the grantors, and the deed described above was delivered. Plaintiff offered to prove the deed was executed in this manner because Helen demanded that she and her husband be included in the title, but the testimony was excluded. In this connection, it is of interest that on examination by his own attorney, defendant testified as follows: 'Q Mr. Sheridan, did you ever ask that your name be placed on this deed? A My wife did. Q Did you? A I doubt if I did; I think it was my wife that did.' The deed was drawn by a representative of the First Federal Savings and Loan Association of Lincoln, and the evidence is that the defendant told him how it was to be drawn.

The mortgage was paid December 28, 1962. On that date plaintiff gave a check to the First Federal Savings and Loan Association in the amount of $19,003.96, and Helen gave a check in the amount of $686.49. Plaintiff had previously paid $205.50 on the mortgage. On the same day, Helen issued a check to the county treasurer for taxes in the amount of $257.95.

It is defendant's contention that the Sheridans were to pay only $1,000 on the purchase price, and that the plaintiff was to pay the balance. It is his contention that the two items enumerated above constitute a part of the $1,000 they were to pay. There is no other testimony in this record to prove that the Sheridans actually paid $1,000 on the purchase price. Defendant's testimony is contradicted by plaintiff, who insists she always demanded one-half of the purchase price.

The trial court found as follows: 'IT IS, THEREFORE ORDERED, CONSIDERED AND ADJUDGED, BY THE COURT, that said shares of each of the parties and their respective interests in said real estate are: 1. Minnie Giles, Plaintiff, Nineteen-twentieths (19/20) of a One-third (1/3) interest in said property, plus and in addition thereto the sum of $13,135.50 from her co-tenants and the survivor to reimburse said Minnie Giles for her payment of the mortgage on said premises, and said sum shall be and constitute a lien on said co-tenants (sic) share; and a life tenancy in the undivided one-sixtieth (1/60) interest of Harley Giles therein. 2. Harley Giles, an undivided one-sixtieth (1/60) interest therein, subject to the life estate of the plaintiff, Minnie Giles, who on November 9, 1963, was 85 years of age. 3. John V. Sheridan (his own interest and as surviving joint tenant of Helen M. Sheridan) two-thirds (2/3) interest in said property, subject to and charged with the payment and...