Hiatt v. Brooks

• Decision Date: 07 January 1885
• Citation: 22 N.W. 73,17 Neb. 33
• Parties: JAMES S. HIATT, PLAINTIFF IN ERROR, v. JEROME B. BROOKS, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

22 N.W. 73

17 Neb. 33

JAMES S. HIATT, PLAINTIFF IN ERROR, v. JEROME B. BROOKS, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 7, 1885

ERROR to the district court for York county. Tried below before NORVAL, J. The opinion, taken in connection with that filed when the case was before this court at the July term, 1882 states the facts of the case.

AFFIRMED.

Scott & Gilbert, for plaintiff in error, cited: 6 Wait's Actions and Defenses, 571. Wolf v. Marsh, 54 Cal. 228.

Sedgwick & Power and George B. France, for defendant in error, cited Wells' Res Adjudicata, § 613 et seq. Lesse v Clark, 20 Cal. 417. Parker v. Pomeroy, 2 Wis. 122.

OPINION

COBB, CH. J.

This case was before this court and disposed of by an opinion in favor of the then plaintiff, now defendant in error, and reported in 13 Neb. 503.

In so far as the written contract between the parties, consisting of the notes and article of agreement, were construed by the court in that opinion, such construction will be adhered to as the law of the case. This court having announced its views as to the proper construction of the contract, and ordered a new trial to be governed by the principles thus announced, it would be inadmissible to review the ground of such opinion, now that the trial court has obeyed such order with the result logically following.

The principal error relied upon in the case at bar is, that the court erred in instructing the jury to find for the plaintiff in the court below, thus taking the consideration of the case from the jury and disposing of it as a question of law. This point not having been involved in the former case will be considered here.

The defendant in the court below having admitted the execution and delivery of the note sued on, it rested upon him to show, as well in his pleadings as by his proofs, a legal defense to its binding force. The answer is too lengthy to be copied here; but the substance is, that the notes with others, together with a certain contract, copies of which were to said answer attached, were executed at the same time and should be considered and construed together; that the sole consideration for the giving of said notes and contract was as set forth in said contract; that the rights pretended to be conveyed to the plaintiff by said contract were guaranteed and warranted by said contract by plaintiff to defendant that they should not fail, otherwise no action could be maintained on said note, etc.; that the land upon which the improvements are situated is unpatented, the title being in the government of the United States; that the improvements specified were put upon said land by John M. and Myron L. Grant; that at the time of the execution of the note, etc., the plaintiff had no title to said property, nor has he since acquired any such title; but that Myron L. Grant, who afterwards conveyed the same to defendant, was the owner and entitled to the possession thereof; that the said note was given without consideration, etc.

From the bill of exceptions I gather the following as the facts in the case: Some time previous to the date of the note sued on, John M. and Myron L. Grant had possession of the north-east quarter of sec. 28, in township 11, range 2 west, and made permanent improvements thereon. These improvements consisted, in part, of a dwelling-house, situated on the west eighty of said quarter section, and other improvements, the character, value, or extent of which are not given, situated on the east eighty thereof. About a year before the date of the note sued on, and of the other notes and contract referred to, the Grants placed the defendant in possession of the said house and improvements, and one of them at least went to the state of Michigan. We are furnished with no fact as to the nature of the arrangement between the Grants and the defendant, or whether the latter went into the possession of the land with the view of acquiring a right to it under the homestead or preemption laws, or not. While the defendant was in such possession and the Grants absent, Myron L. in the state of Michigan, the plaintiff applied to the United States authorities and obtained the right of possession, popularly called "a filing," of the west half of said quarter section, the part on which the said dwelling-house then occupied by defendant was situated. This he could have obtained only by attacking the right of the Grants to said land and proving that they had abandoned it. And clearly his being admitted to "a filing" on the land gave him the right to the exclusive possession of the land as against everybody but the United States.

It seems that the defendant, although he had been put into the possession of the house by the Grants, recognized the right of the plaintiff not only to the west eighty with the improvements, but recognized his ability to procure the possessory title to the east eighty from the United States for him. And these constituted the consideration for the notes--the house and the...