Hiskett v. Bozarth

• Decision Date: 22 November 1905
• Citation: 105 N.W. 990,75 Neb. 70
• Parties: HISKETT v. BOZARTH ET AL. LLOYD v. HISKETT ET AL.
• Court: Nebraska Supreme Court

75 Neb. 70

105 N.W. 990

HISKETT

v.BOZARTH ET AL.

LLOYD

v.HISKETT ET AL.

Supreme Court of Nebraska.

Nov. 22, 1905.

Syllabus by the Court.

In this case (an action by a married woman against the representatives of a deceased person to enforce the specific performance of a contract with the deceased), the husband of the plaintiff was a competent witness in her behalf.

A contract affecting the title to real estate is not void for uncertainty, if the land intended to be described can be identified from the description in the contract with the aid of parol evidence. Ruzicka v. Hotovy (Neb.) 101 N. W. 328.

Commissioners' Opinion. Department No. 2. Appeal from and Error to District Court, Pawnee County; Babcock, Judge.

Action by Ida M. Hiskett against Jane Bozarth and others. Judgment for plaintiff. Bozarth and others appeal, and E. H. Lloyd, executor, brings error. Affirmed.J. C. Dort, for appellants.

L. W. Colby, for appellee.

J. C. Dort and Story & Story, for plaintiff in error.

L. W. Colby and G. T. Belding, for defendants in error.

JACKSON, C.

Ida M. Hiskett, plaintiff, obtained a decree in the trial court against E. H. Lloyd, executor of the last will and testament of Andrew McPheeters, deceased, and other defendants, as heirs and devisees of the deceased, for the specific performance of a contract covering real estate. The executor prosecutes error, and the other defendants have appealed. Certain of the defendants are minors, who appeared by guardian ad litem. The case was tried upon an amended petition, answers on behalf of the defendants, and the reply thereto.

The allegations of the petition pertinent to the inquiry are:

That on or about the 19th day of August, 1896, Andrew McPheeters, grandfather of the plaintiff, was the owner in fee simple of the N. 1/2 of the N. W. 1/4 of section 18, in township 3 N. of range 10 E., in Pawnee county, Neb. That the tract contained about 86 acres according to government survey. That said Andrew McPheeters, then being in advanced old age and requiring special care and attention incident to his condition, and desirous to sell and dispose of said premises for the purpose of having such care and attention during his remaining days, and the plaintiff being desirous of purchasing said premises and giving the said care and attention, the said Andrew McPheeters for a good and valid consideration made and entered into a written agreement on said date with the plaintiff, which said writing was duly signed and delivered by the said Andrew McPheeters to the said plaintiff. That the plaintiff signed and accepted the terms of the agreement, the contract being as follows:

“Aug. 19, 1896.

I Andrew McPheeters do agree to give Ida M. McPheeters this (86) eighty-six acre farm free of encumbrance, provided that she take care of me all my remaining days.

Andrew McPheeters.

Witness: S. D. Hiskett.

The farm is the North half of Northwest quarter, Section 18, Town 3, Range 10 in Pawnee county, Nebraska. I agree to the above contract.

Ida M. Hiskett.”

That upon the execution of said contract by Andrew McPheeters the plaintiff entered upon the performance of the same, and thereafter fully consummated and performed the terms and provisions thereof to be performed by her. That she took care of said McPheeters during all of his remaining days, as desired and required by him, and to his full and entire satisfaction. That the services were received and accepted by McPheeters under the terms of the agreement until his death. That McPheeters died on the 19th day of January, 1902, and at the time of his death she had not received a conveyance of the said described premises. That said McPheeters left a last will and testament. That defendant E. H. Lloyd was the executor of the estate of McPheeters. That the plaintiff had demanded a conveyance according to the terms of the contract, and that the executor had refused to convey the same.

The answer of the adult defendants, including the executor, in substance denied the execution of a written agreement and alleged that the agreement was not sufficient in law to constitute a contract; admitted that McPheeters was the owner of the real estate, and pleaded as an estoppel that on the 23d day of July, 1900, said McPheeters executed a last will and testament of all of his property, both real and personal, wherein the plaintiff was named as one of the heirs and devisees, and at the same time he executed a promissory note for the sum of $150 in favor of the plaintiff; that the plaintiff had received the amount of the note; that the will had been admitted to probate; that the plaintiff's husband, S. D. Hiskett, with the knowledge and consent of the plaintiff, filed a claim in the county court against the estate of deceased for board, supplies furnished, and the keeping of McPheeters for the period of about five years. The minor defendants answered by their guardian ad litem, admitting the death of the deceased; that he was the owner of the real estate in question on August 19, 1896; that McPheeters left a last will and testament, which had been admitted to probate; that Lloyd was appointed executor; and denying other allegations of the petition. The reply was a general denial.

The appeal presents the question of the sufficiency of the pleadings and proof to sustain the decree; one of the principal contentions being that the contract is not sufficiently definite and certain to permit of its being enforced, because parol evidence was necessary to identify the particular tract of land intended to be affected by its terms, and is therefore insufficient under the...