Hartnett v. Hartnett

• Decision Date: 02 October 1894
• Docket Number: 5858
• Citation: 60 N.W. 362,42 Neb. 23
• Parties: JOHN HARTNETT, APPELLEE, v. THOMAS HARTNETT, APPELLANT
• Court: Nebraska Supreme Court

60 N.W. 362

42 Neb. 23

JOHN HARTNETT, APPELLEE, v. THOMAS HARTNETT, APPELLANT

No. 5858

Supreme Court of Nebraska

October 2, 1894

APPEAL from the district court of Dakota county. Heard below before NORRIS, J.

AFFIRMED.

Davis Gantt & Briggs, for appellant, cited: Marshall County High School Co. v. Iowa Evangelical Synod, 28 Iowa 360; Finlayson v. Finlayson, 3 L. R. A. [Ore.], 801; Knapp v. Bailey, 79 Me. 195; Miller v Edgerton, 38 Kan. 36; Fairchild v. Rasdall, 9 Wis. 380*; Clifton v. Jackson Iron Co., 74 Mich 183; 2 Parsons, Contracts, 782; Bolt v. Rogers, 3 Paige Ch. [N. Y.], 154; Goudy v. Gebhart, 1 Ohio St. 262; Hendrickson v. Evans, 25 Pa. St., 441; Payne v. Bruton, 10 Ark. 53; Blystone v. Blystone, 51 Pa. St., 374; Nellis v. Clark, 20 Wend. [N. Y.], 24.

Jay & Beck, contra, cited: Munson v. Carter, 19 Neb. 293; Borden v. White, 44 N. J. Eq., 291; Pinger v. Pinger, 42 N.W. [Minn.], 289; Catalani v. Catalani, 24 N.E. [Ind.], 375; Nolan v. Nolan, 43 N.W. [Mich.], 1078; Dunn v. Dunn, 7 A. [N. J.], 842; Whipple v. Barton, 3 A. [N. H.], 922; Tancre v. Pullman, 29 N.W. [Minn.], 171; Davis v. Dean, 26 N.W. [Wis.], 737; Samson v. Samson, 25 N.W. [Ia.], 233; Crawford v. Hoeft, 24 N.W. [Mich.], 645; Smith v. Smith, 19 N.W. [Wis.], 47; Ashton v. Thompson, 18 N.W. [Minn.], 918; Sprague v. Hall, 17 N.W. [Ia.], 743; Thorn v. Thorn, 16 N.W. [Mich.], 324; Hanna v. Wilcox, 5 N.W. [Ia.], 717; Watkins v. Brant, 1 N.W. [Wis.], 82; Ikered v. Beavers, 7 N.E. [Ind.], 326; Oakley v. Ritchey, 28 N.W. [Ia.], 448; Bledsoe v. Bledsoe, 1 S.W. [Ky.], 10; Saunders' Appeal, 6 A. [Conn.], 193; Woodbury v. Woodbury, 5 N.E. [Mass.], 275; Porter v. Throop, 11 N.W. [Mich.], 174; June v. Willis, 30 F. 11; Webber v. Sullivan, 12 N.W. [Ia.], 319; O'Neil v. O'Neil, 14 N.W. [Minn.], 59; Maix v. McGlynn, 88 N.Y. 357; Smith's Will, 52 Wis. 543; Smith v. Smith, 19 N.W. [Wis.], 47; Weller v. Weller, 19 N.E. [N. Y.], 433; Goodrich v. Shaw, 40 N.W. [Mich.], 187; Fitch v. Reiser, 44 N.W. [Ia.], 214.

OPINION

HARRISON, J.

November 12, 1892, the plaintiff John Hartnett commenced an action against the defendant in the district court of Cedar county, alleging in the petition then filed that on December 18, 1890, he was the owner of real estate in Dakota county, Nebraska, more particularly described as follows: "East half of the southwest quarter, and the northwest quarter of section 12, township 28, range 7," and that on the last named date he conveyed to defendant, by warranty deed, a portion of the land, to-wit, "the east half of the southwest quarter of said section 12," and further pleading as follows: "The plaintiff further states that said warranty deed was procured from him by fraud and undue means, and that he was induced to sign and deliver the said deed to defendant by false and fraudulent statements and misrepresentations, and by threats of personal violence and by threatening to bring suit against plaintiff, made by defendant to this plaintiff, and that said deed was made wholly without consideration and was and is not the voluntary act and deed of the plaintiff but was induced and procured by fraud and misrepresentations and threats as aforesaid." The prayer of the petition is that the deed to defendant be canceled and plaintiff be decreed to be the owner of the land. On the 28th day of March, 1892, the plaintiff filed what is styled in the record "an amendment to the petition," which was as follows:

"1. Comes now the plaintiff and for amendment to his petition filed herein states and shows the court that the said deed described in the said petition of the plaintiff was procured from the plaintiff and he was induced to sign the same by false and fraudulent statements made to him by the defendant, and that the said defendant wanted to use said land for the purpose of inducing an uncle of the defendant to convey to defendant certain lands, and wanted the lands conveyed to himself and allowed to stand in his name for the sole purpose of procuring such conveyance, and the defendant, at and before the time the plaintiff conveyed said land to the defendant as described in the petition, promised to the plaintiff that immediately upon his securing the conveyance of the other lands from his uncle as aforesaid, he, the defendant, would at once reconvey the lands, described in the plaintiff's petition, to the plaintiff.

"2. That the lands as above set forth have been conveyed by the uncle of the said defendant to the defendant and are owned and held by him, but that the defendant, though often requested to do so, has refused to reconvey the said lands to the plaintiff."

To the petition and its amendment the defendant filed an answer, in which he admitted the conveyance of the land to him and denied, generally, each and every allegation not expressly admitted or otherwise answered, and for a further defense alleged that from the time he became capable of doing work on a farm, he worked for plaintiff on his farm in Dakota county continuously until defendant was about twenty-eight years old; that after he arrived at the age of twenty-one years it was understood between him and plaintiff that defendant should receive of plaintiff for such labor the reasonable value of the same, which he fixes at the sum of $ 2,000; that at or before the time of the conveyance of this land by plaintiff to defendant there was an accounting between them, at which time defendant demanded payment for his labor according to agreement, and that the conveyance of this land in controversy was made by plaintiff to defendant in payment for defendant's claim for labor, and accepted as such by him. The answer also contains what is denominated a "second and further defense," in which it is stated that plaintiff, at or before the time of the conveyance of this land to defendant, owned at different times in Dakota county tracts of land aggregating 1,600 acres and a large amount of personal property; that plaintiff had six children, and at or before the time of the conveyance of this land to the defendant the plaintiff made a division of his lands and personal property among his children, and the land in controversy in this case was conveyed to defendant as a portion of his share of the plaintiff's property, he being one of the plaintiff's sons. The answer closes with a prayer for a dismissal of the petition. There was a reply filed on behalf of plaintiff, in which it was admitted that defendant worked for plaintiff upon the farm during a portion of the time stated in the answer, and then alleged that defendant had been fully paid for all services rendered to plaintiff prior to the time of the execution of the conveyance of this land. The reply also contained a general or special denial of all the other allegations and statements of the answer. There was a trial of the issues to the court, a decree rendered in favor of plaintiff, from which defendant has appealed to this court.

The testimony in this case shows that at and prior to the time of the execution of the deed, which it is sought to annul, two of the sons of the plaintiff, one of them the defendant, were living on a farm with plaintiff, which belonged to him; that the two sons were working the farm together, and probably shared the proceeds of their joint efforts,--at least the bank account was in the name of Hartnett Brothers, and each carried a check book and drew upon it for money necessary for various purposes. The plaintiff was seventy-two or seventy-three years of age, not in very good health and somewhat weak and feeble. He had, prior to the time of making this deed, given or conveyed to some of his children, of whom there were six in all, portions of his property, but the defendant had not received what he considered or claimed to be his share, and demanded and insisted he be given what he termed "his share," and with it that the tract of land included in the deed in controversy be conveyed to him; and on December, 1890, he received a conveyance of another piece of land, and twenty-six head of cattle and other personal property were turned over to him, and this deed in suit was executed and delivered. The only question which concerns us in this case is, what was the moving influence or reason which induced the plaintiff to make this particular deed? The testimony does not show that this tract of land was conveyed to defendant in payment of labor or as a part of any share of the estate to which he was in any manner or for any cause entitled, or because plaintiff considered that defendant had any right or claim to it, and we must turn to the evidence adduced on this point to discover why the deed was made and delivered to defendant. In the testimony of the plaintiff we find the following:

A. Well, he wanted a deed of me all the time and I would not give it to him; and then he went to his two brothers and talked to them about it and I would not give it to him. He threatened me several times--threatened my life; and then he went to his two brothers and talked to them about it. He said James got so much from me that he was going to get his uncle's place. He was going to marry John Ryan's daughter and get so much from her; then he went to his two brothers and told them if I gave him that and he got his uncle's place, he would deed it back. * * *

Q. You say he threatened your life?

A. Yes, sir.

Q. Was that because you refused to make the deed?

A. Yes, sir.

Q. State what he said about that matter.

A. He told me first he would have "blood" if I didn't give it to him. One night he followed me into the bedroom and said he would kill me if I didn't give it to him.

Cross-examination:

Q. Then the deed was not made on account of the threats?

A. I could not go from here to the door he was not after me threatening me.

Q. You didn't...