Grohowsky v. Long

• Decision Date: 10 November 1886
• Citation: 30 N.W. 257,20 Neb. 362
• Parties: THOMAS GROHOUSKY, PLAINTIFF IN ERROR, v. DANIEL LONG, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

30 N.W. 257

20 Neb. 362

THOMAS GROHOUSKY, PLAINTIFF IN ERROR, v. DANIEL LONG, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 10, 1886

ERROR to the district court for Cuming county. Tried below before CRAWFORD, J.

AFFIRMED.

Uriah Bruner, for plaintiff in error.

M McLaughlin, for defendant in error.

OPINION

MAXWELL CH. J.

In February, 1885, the plaintiff filed his petition in the county court of Cuming county, in which he alleges "that he is the owner in fee simple of the S.E. 1/4 Sec. 16, Town. 23, Range 6; that he had the right of possession of said premises ever since October 27, 1884; that said Daniel Long, defendant, about October 27, 1884, unlawfully and forcibly entered into possession of said premises, and has ever since and does still unlawfully and forcibly detain the same from the said plaintiff; that said plaintiff, on January 28, 1885, served upon said defendant, as required by law, a notice in writing requesting said defendant to leave said premises; that said defendant is a settler or occupier as aforesaid on said lands and tenements without any color of title; and said plaintiff demands restitution."

On February 24, 1885, said defendant filed his answer, setting up his defenses as follows:

"1. He denies each and every allegation of the plaintiff's petition.

"2. Alleges that on May--, 1881, said lands were school lands, at which time said defendant leased the same from the state and went into possession and made improvements thereon of the alleged value of $ 1,500, and has ever since lived thereon and had exclusive and uninterrupted possession thereof with knowledge of said plaintiff.

"3. That on October--, 1881, said defendant gave his note, signed by one Fred Koch as surety, to one T. M. Franse for $ 222 payable in one year with 8 per cent interest; that shortly after the note became due, said defendant not being able to pay same, it was put into judgment against said defendant and said Koch; and said Koch urged said defendant to pay the same or indemnify him against damage or loss, and being advised thereto by said T. M. Franse, his attorney therein, on about May--, 1884, assigned and surrendered said lease to said Koch as security and indemnity against loss and damage on account of said judgment; that said Koch promised to hold said lease and lands in trust for said defendant for two years, and if said defendant should within that time pay said judgment and indemnify said Koch and pay him all losses and damages he might sustain by being compelled to pay said judgment and costs, he would surrender to said defendant said lease and lands; and it was then agreed between said defendant and Koch that said Franse should put said contract into writing, to be signed by Koch and delivered to said defendant on the next day thereafter, but which they failed and refused to do, although frequently requested thereto.

"4. That contrary to the terms of said trust, and in violation thereof, said Koch, on October--, 1884, made a pretended sale and assignment of said lease to said Franse, who had knowledge of said trust in Koch, and said Franse, confederating with said plaintiff to defraud said defendant out of said lands, secretly and hastily sold said lease to said plaintiff for $ 2,700, which he paid to said Franse, and was appropriated to his use and benefit, except $ 250, the amount of said judgment, which said Franse paid; that all this was done without the knowledge of said defendant.

"5. That on the same day said Franse and plaintiff went hastily to the...