Hilton v. Bachman

• Citation: 24 Neb. 490,39 N.W. 419
• Parties: HILTON v. BACHMAN ET AL.
• Decision Date: 26 September 1888
• Court: Supreme Court of Nebraska

24 Neb. 490

39 N.W. 419

HILTON

v.BACHMAN ET AL.

Supreme Court of Nebraska.

September 26, 1888.

Syllabus by the Court.

Title 7 of the Civil Code names and defines the pleadings required in a civil action. In all cases the pleadings in such action should be made to conform to the provisions of said title.

Only such portion should be included in a transcript brought to this court as is necessary to a correct understanding of the case. Galley v. Galley, 13 Neb. 200, 13 N. W. Rep. 172.

A party to a proceeding in the district court, where such court has jurisdiction over the parties and subject-matter of the action will be bound by the judgment in such cases when collaterally attacking it, even though that jurisdiction was irregular or erroneously executed.

All presumptions are in favor of the regularity of the proceedings of courts of record when collaterally assailed, and where a decree contains the finding of a fact specially which is pleaded in the petition, it must be presumed that sufficient evidence was submitted to the court to justify such finding.

Appeal from district court, Lancaster county; HAYWARD, Judge.George H. Hilton, for appellant.

Harwood, Ames & Kelly and C. O. Whedon, for appellees.

REESE, C. J.

This action was instituted in the district court for the purpose of setting aside certain conveyances to real estate, and to remove from his trusteeship one John H. Hilton, of the state of Iowa, and the appointment of another in his stead. The record in the case is voluminous, and from the transcript of the proceedings it is very difficult to understand the exact condition of the case. The amended petition filed in the district court is denominated an “Amended Bill in Equity,” in writing which the pleader has followed the common-law form of pleading, styling the plaintiffs “orators,” and indulging in the usual circumlocution of a common-law pleading. The district court would have been justified, upon its attention being called to the fact, upon a refusal of plaintiff to reform his petition, in striking the paper from the files, and requiring a petition to be filed which would have conformed to the provisions of the case. The transcript contains a motion filed in the district court by defendants, by which the district court was asked to strike out a considerable portion of the amended petition. This motion is quite lengthy, containing 10 counts or numbered paragraphs, in which the parts of the petition objected to are quoted at length. The transcript shows that the motion was submitted to the court, and sustained “as to the third, fifth, sixth, and 10th paragraphs of said amended petition.” The petition is not numbered by paragraphs, and it is impossible for us to know whether the parts stricken out are now copied into the transcript of the petition or not. We must presume that they are, for if they were omitted there could be no necessity for the copy of the motion which is in the record; but what particular paragraphs are referred to is beyond the power of any one to say from this record. These observations are not made for the purpose of criticising the action of counsel in the preparation of the record, but for the purpose of again calling attention to the very important rule of practice which requires a record to contain nothing but what is essential to a full understanding of the case. The summons and return thereon, the alias summons and return thereto, the demurrers and motions, with the rulings of the court thereon, should all have been omitted from the record in this court, no question being presented which required them to be included in the transcript.

It appears that on the 26th day of October, 1861, the plaintiff George H. Hilton executed and delivered to his brother, John Hilton, a deed to a large tract or body of land situated in Lancaster county, in trust and for the benefit of George L. Hilton, James F. Hilton, and Joseph B. Hilton, in equal portions; that at that time James F. and Joseph B. were infants; that on the 16th day of September, 1863, John Hilton, the trustee, conveyed the land to Alice B. Hilton, who was the daughter of George H. Hilton and a sister of the cestuis que trust named in the deed to John. This deed, while not in form a trust deed, was evidently intended as and for a transfer of the trust from John to Alice. The deed was as follows: “Know all men by these presents, that John Hilton and Margaret Hilton, his wife, the John Hilton as trustee as herein stated, of Madison county, state of Iowa, in consideration of the sum of one thousand dollars in hand paid, do hereby sell and convey unto Alice B. Hilton, of Hamilton county and state of Ohio, the following described premises, to-wit, [we omit the description of the land,] and being the same premises conveyed by George H. Hilton to said John Hilton in trust, etc., by deed dated 26th October, 1861; and we do hereby covenant to warrant and defend the said premises against the lawful claims of outsiders, and the said Margaret Hilton hereby relinquishes all her right of dower in and to the above-described premises, the said John Hilton herein named conveys as trustee of George L., Joseph B., and James F. Hilton.”

This conveyance was evidently made for the purpose of retaining the title to the real estate within the family of George H. Hilton, the original grantor, and under the supposed authority to do so conferred by the deed from George H. to John. That deed was, in part, as follows: “Know all men by these presents, that George H. Hilton, of Hamilton county, Ohio, in consideration of one dollar and natural love, etc., to him paid by John Hilton, of Madison county, Iowa, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, and convey to the said John Hilton, his heirs and assigns, forever, in trust for the benefit of my sons, George L., James F., and Joseph B. Hilton, in equal portions, said trustee having authority to sell and convey all or any portion, at any time or in any way, at his discretion, for their benefit, the following described real estate, to-wit,” etc. On the 22d day of November, 1865, Alice B. Hilton conveyed the premises to Augusta Hilton, (a sister,) and in which the land is referred to as “being the same premises conveyed to the said Alice B. Hilton by John Hilton, trustee, for George L., James F., and Joseph B. Hilton, by deed dated 16th September, 1863,” etc. This deed was made just prior to the marriage of Alice to Mr. Ducharme, by the consent of George H. Hilton, the plaintiff, and for the purpose of preventingDucharme from acquiring any interest in the property by reason of the title being held by his wife. On the 25th day of August, 1871, Augusta Hilton executed and delivered to George L. Hilton, one of the cestuis que trust, a deed to the undivided two-thirds of the real estate in trust for the benefit of her two brothers, James F. Hilton and Joseph B. Hilton, in equal portions. On the 16th day of September, 1872, George L. Hilton, as trustee for his two brothers, James F. and Joseph B., executed and delivered to Smith B. Galey a deed for the said undivided two-thirds interest in the real estate in dispute, together with a number of other tracts or parcels, the consideration named in the deed being $8,000. Soon thereafter an action was instituted in the district court by James F. Hilton and Joseph B. Hilton, as infants, by William W. Dunham, their next friend, against John Hilton, Alice Ducharme, and Alfred Ducharme, her husband, Augusta Hilton, George L. Hilton, Smith B. Galey, and Estella O. Galey, his wife, the purpose of which was to set aside the deeds from John Hilton to Alice B. Hilton, and from Alice B. to Augusta, and from Augusta to George L., and from George L. to Galey; the title to be declared in John Hilton, as trustee, according to the terms of the first deed; or that it be declared to be in George L. Hilton as trustee, instead of John; or that the court appoint some person, as such trustee, to take charge of the land, and sell the same in such manner as the court might direct. To the petition in that case Galey filed his answer, which we need not notice. George H. Hilton, one of the plaintiffs in this case, was one of the attorneys for the plaintiffs in that case. On the 17th day of September a stipulation was entered into, by which it was agreed that, at the next term of court, a decree should be entered, by consent, that Galey should, within a time to be named by the court, convey the real estate to William C. Lincoln, to be held by him under the same trust John Hilton had held, and with the same power of disposition as was expressed in the deed from George H. to John. At the next session of the district court this stipulation, signed by George L. Hinton, W. W. Dunham, Smith B. Galey, and Walter J. Lamb, E. E. Brown, and George H. Hilton, as attorneys for the plaintiffs, was summoned to the court, and the cause was dismissed in accordance with the terms of the stipulation.

On the 13th of December, 1873, William C. Lincoln filed his petition in the district court, in which it was alleged that he held the real estate in trust for James F. and Joseph B. Hilton, infants, to the extent of an undivided two-thirds interest therein; that their father, George H. Hilton, was unable to maintain them, and that their maintenance had devolved upon him, and that he had been required to pay, out of his own means, the sum of $4,800 in defending, settling, and compromising various suits in which the title to the property was involved; and that, in addition thereto, the sum of $800 taxes on the real estate would become due on the 1st day of January, 1874, to which was added the taxes for the year 1871, $761.98, and for 1872, $762.53, making a total of $7,065.51, two-thirds of which, to-wit, $4,710.34, should be paid by the infants, they being the owners of the undivided two-thirds of the real estate. In addition to this, the petition contained an...