Grand Lodge Independent Order of Odd Fellows of Nebraska v. Marvin

• Decision Date: 14 June 1985
• Docket Number: No. 83-829,83-829
• Citation: 220 Neb. 197,369 N.W.2d 54
• Parties: GRAND LODGE INDEPENDENT ORDER OF ODD FELLOWS OF NEBRASKA, Appellee, v. Lawrence D. MARVIN, Appellant, Diana Welstead Sandobal et al., Appellees.
• Court: Nebraska Supreme Court

Page 54

369 N.W.2d 54

220 Neb. 197

GRAND LODGE INDEPENDENT ORDER OF ODD FELLOWS OF NEBRASKA, Appellee, v. Lawrence D. MARVIN, Appellant, Diana Welstead Sandobal et al., Appellees.

No. 83-829.

Supreme Court of Nebraska.

June 14, 1985.

Syllabus by the Court

Estoppel. Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right either of property, of contract, or of remedy.

Avis R. Andrews, Fremont, for appellant.

Thomas B. Thomsen, Fremont, for appellee Grand Lodge.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

GRANT, Justice.

The defendant-appellant, Lawrence D. Marvin, appeals from the October 5, 1983, Dodge County District Court order overruling his motion for new trial. The district court, on December 2, 1982, found for plaintiff-appellee, Grand Lodge Independent Order of Odd Fellows of Nebraska, a nonprofit Nebraska corporation (hereinafter Grand Lodge), on a petition in ejectment removing Marvin from the south 44 feet and the north 4 feet of the south 48 feet of the west 89 feet of Lots 1 and 2 in Block 124 of the City of Fremont, as surveyed, platted, and recorded, in Dodge County, Nebraska. We reverse the decision of the district court, finding, as a matter of law, that the Grand Lodge is estopped from claiming Marvin's sales contract is not valid.

This case arises out of a real estate contract for the sale of property. The local lodge of the Independent Order of Odd Fellows, Centennial Lodge No. 59, in Fremont, Nebraska, a nonprofit Nebraska corporation (hereinafter Fremont Odd Fellows), signed a contract to sell its lodge building to Marvin and to Daniel W. Welstead, Sr., on December 4, 1976. The Fremont Odd Fellows had been in financial trouble and owed $26,574.90 in back taxes on the above-described property. In an effort to avoid the embarrassment of a tax foreclosure, the Fremont Odd Fellows negotiated with Marvin and Welstead for a sale of the property. On August 31, 1976, Marvin and Welstead paid the back taxes on the property, with the aid of $10,000 advanced by the Fremont Lodge. That day they expected to sign a sales contract for the property, but the officers of Fremont Odd Fellows did not appear at the courthouse or at Marvin's attorney's office as agreed. On December 4, 1976, after the delinquent taxes had been paid and before any communication with the Grand Lodge, the Fremont Odd Fellows signed the real estate contract in question. The contract required a deed conveying the property above described to Marvin and Welstead be placed in escrow at the Fremont National Bank & Trust Co. and delivered to Marvin and Welstead when the full purchase price had been paid. A warranty deed was executed by the Fremont Odd Fellows and placed in escrow as agreed. The sales contract listed the sale price of the property as $32,000, the downpayment as $26,574.90 ($10,000 of which had been advanced by the seller, Fremont Odd Fellows, to the buyers and used to pay the delinquent taxes), and the balance due under the contract as $15,625.10 (which included the $10,000 advanced by the lodge). Marvin and Welstead were also required to pay various other expenses of the sale and interest on the balance at the rate of 7 percent per annum simple interest. Marvin and Welstead's monthly payments to the Fremont Odd Fellows were set at $1,065. This amount was to be paid by monthly payments of $65 cash and $1,000 credit for rent of the building's basement to the Fremont Odd Fellows. The third year, the monthly payments increased to $1,165, $65 cash and $1,100 rental credit. The contract did not provide for payment of rent to the buyers after the third year nor a right of the sellers to rent any part of the building.

On the day that the real estate sales contract was signed, Marvin typed up a document stating that the Fremont Odd Fellows conducted a meeting on December 4, 1976, and certifying that the proper procedures for the sale were carried out according to the bylaws of the Fremont lodge, that the lodge had notified all members in writing, that two-thirds or more of the members had voted to sell, and that the Grand Lodge had given the Fremont Odd Fellows dispensation to sell. This document was signed by the Fremont Odd Fellows' noble grand, the financial secretary, two trustees, Welstead as a past trustee, and the president of the building board, and certified that the statements were true and that the exact minutes of the meeting would be looked up later. Marvin had never been a member of the Fremont Odd Fellows, but was a lifetime member, and had been since 1964, of the Grand Lodge. Marvin testified that he typed up the document for the Fremont Odd Fellows' officers to sign, not at a meeting, but either at his attorney's office or in the Fremont lodge building while the Fremont officers were looking in the basement files for the dispensation they said they had obtained. Marvin also admitted that he knew the Fremont Odd Fellows needed dispensation from the Grand Lodge to sell the property, but he testified that each of the officers who signed the document attached to the real estate contract verbally assured him they had dispensation to sell. There was no testimony from any of the Fremont Odd Fellows who had signed the December 4, 1976, contract that Marvin's testimony was not correct.

The 1970-71 past grand master of the Grand Lodge testified that general dispensation to sell the property had been granted the Fremont Odd Fellows during his tenure but that specific approval to a sale was still necessary. He further testified that no mention was made to Fremont Odd Fellows of the need for future approval. This dispensation was the only one received by the Fremont Odd Fellows before the signing of the contract of December 4, 1976. After the contract was signed the Fremont Odd Fellows attempted to receive dispensation for the sale which had already occurred. On February 8, 1977, the Grand Lodge sent a letter to the Fremont Odd Fellows allowing it dispensation to sell. This first letter was followed by a second the same day, conditioning the permission on the approval of the sales contract. The evidence shows more than a year of correspondence between the two lodges attempting to get approval of various contracts, even though a contract had been signed on December 4, 1976, and a deed had been deposited in escrow. The minutes of the Fremont Odd Fellows' meetings throughout this period show that Marvin was considered to be the owner and the Fremont Odd Fellows the tenant.

Marvin had taken possession of the building, made regular payments to Fremont Odd Fellows, $1,065 and $1,165 (receiving $1,000 and $1,100 credit for rent to the lodge), paid the real estate taxes in 1977 and succeeding years, and took care of the other expenses of the building. In 1979 Fremont Odd Fellows became defunct, and, according to a provision in its constitution, all its property became the property of the Grand Lodge when it became defunct.

From the time the Fremont Odd Fellows became defunct until July 20, 1981, when the Grand Lodge filed its petition to eject Marvin, Marvin paid the property taxes and tendered the $65 a month to the Grand Lodge. The Grand Lodge, while not cashing any of the checks, allowed Marvin to pay the taxes and did not attempt to return the original downpayment to Marvin.

On July 20, 1981, the Grand Lodge filed a petition to eject the defendant Marvin (who, in the meantime, had purchased Welstead's interest in the property from Welstead's heirs) and for an accounting of the rents and profits. Trial was had to the court on October 12, 1982. On December 2, 1982,...