Hanscom v. Meyer
| Decision Date | 23 February 1899 |
| Docket Number | 8716 |
| Citation | 78 N.W. 367,57 Neb. 786 |
| Parties | ANDREW J. HANSCOM, APPELLEE, v. MAX MEYER ET AL., APPELLANTS, ET AL |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before KEYSOR, J. Affirmed.
AFFIRMED.
James H. McIntosh, for appellants.
References as to inverse-order rule: Ireland v. Woolman, 15 Mich. 253; Lausman v. Drahos, 8 Neb. 457; Iglehart v. Crane, 42 Ill. 261; Lock v Fulford, 52 Ill. 166; State v. Titus, 17 Wis 248; Aikin v. Milwaukee & S. P. R. Co., 37 Wis. 469; Ex parte Merriam, 4 Den. [N. Y.] 254; Andreas v. Hubbard, 50 Conn. 357.
Charles S. Elgutter, also for appellants.
References as to error in excluding evidence: Riggles v. Erney, 154 U.S. 254; Harman v. Harman, 70 F. 894; Ferguson v. Rafferty, 128 Pa. 337; German-American Ins. Co. v. Hart, 43 Neb. 441; Woodworth v. Thompson, 44 Neb. 311; Barber v Hildebrand, 42 Neb. 400; Holmes v. First Nat. Bank, 38 Neb. 326; True v. Bullard, 45 Neb. 409.
L. F. Crofoot and Charles Ogden, also for appellants.
George E. Pritchett, contra.
References: Barber v. Harris, 15 Wend. [N. Y.] 616; Macloon v. Smith, 49 Wis. 212; Sherman v. Willett, 42 N.Y. 150; Lamerson v. Marvin, 8 Barb. [N. Y.] 9; Griswold v. Fowler, 24 Barb. [N. Y.] 135; Bernhardt v. Lymburner, 85 N.Y. 173; Woolcocks v. Hart, 1 Paige Ch. [N. Y.] 186; Evertson v. Booth, 19 Johns. [N. Y.] 486; Griswold v. Fowler, 24 Barb. [N. Y.] 135.
On May 15, 1886, the appellants herein purchased of, and there was conveyed to them by, Andrew J. Hanscom, the appellee, eighty acres of land near the city of Omaha, probably about three and one-half miles distant from the then center of the city. A more particular description of the land is as follows: The southeast quarter of the northeast quarter of section 31, and the southwest quarter of the northwest quarter of section 32, in township 15 north, of range 13 east of the sixth principal meridian. The agreed consideration to be paid for the property was $ 40,000, of which there was a payment at the time of $ 2,500. The balance was divided into ten portions, to be paid at stated times, and to evidence the promises of these deferred payments promissory notes were executed, and as security a mortgage on the land purchased was executed and delivered to appellee, in which appeared the statement that it was given to secure the payment of a part of the purchase price of the property described in it. As soon as in the regular course of such matters it could be done, the land was platted as and for an addition to the city of Omaha and named "Manhattan Addition," and sales of lots therein were made to quite a number of persons, to whom warranty deeds or contracts, as the transactions required, were executed and delivered evidencing the purchases. Some of the deferred payments of the purchase price of the land secured by the mortgage were paid, but there were defaults in the further provided payments, and this, an action to foreclose the mortgage, was instituted. The appellants, in the pleadings filed, admitted the execution of the notes and mortgage; stated the purchase of the land; that the appellee then knew the purpose of appellants with which they purchased, viz., to plat it and make of it an addition to the city of Omaha; that he advised them in regard to the manners of procedure, and suggested the name which was given the addition; also, that there was an oral agreement at the time, and which in part moved them to the purchase, that when they effected sales of lots and paid to appellee certain sums, designated portions of the amounts realized from sales of lots, he would release from the lien of his mortgage such lots. The appellants asked that if a foreclosure of the mortgage was decreed, the sale, if any, under it should not be of the land as described in the mortgage in one tract, but that the plat of the addition be accorded recognition; also, the sales by appellants of lots in said addition, and the sale to satisfy the mortgage, be of the divisions of the land as established by the plat and in the inverse order of the alienation by the mortgagors. On hearing, the trial court denied the prayer of the appellants, and sale of the land was ordered accordant with its description in the mortgage.
There are some arguments presented for appellants to establish that appellees' acts in regard to the addition amounted in law to a dedication, or joining in the dedication of portions of the plat and estopped him from enforcing his mortgage by sale of the land in any other manner than in parcels or lots shown by the plat; and further, that the findings and decree of the district court were not sustained by the evidence. The force of these arguments is destroyed by the findings of the district court that the plat was made without the consent, knowledge, or agreement of appellee; and further, that he never made any agreement to release any portion of the land, and further fact that though the evidence relative to the points of litigation to which we have just referred was, in the main, directly...
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