Hunt v. Lipp

• Decision Date: 30 September 1890
• Citation: 46 N.W. 632,30 Neb. 469
• Parties: HUNT ET AL. v. LIPP ET AL.
• Court: Nebraska Supreme Court

30 Neb. 469

46 N.W. 632

HUNT ET AL.

v.LIPP ET AL.

Supreme Court of Nebraska.

Sept 30, 1890.

Syllabus by the Court.

1. The evidence examined, and held to sustain the findings and judgment of the district court.

2. The deposit of building material of from 10 to 50 wagon loads of sand, from 2,000 to 10,000 feet of lumber, and from 2,000 to 10,000 bricks, with a tool and lime house or box, 10 feet square, upon an otherwise unoccupied and vacant town lot, from which portions of such material were from time to time hauled away and used by the owner in buildings then being built or repaired by him on other lots, the balance remaining on the lot, all with the knowledge and implied consent of the owner of the title to the lot, held not to point unmistakably to a contract between the owner of the lot and the owner of the building material and tool-box for the sale of the lot, nor to constitute such a possession of the lot by the owner of the building material as amounted to a part performance of a verbal contract for the sale of the lot by the former to the latter, nor such as would take it out of the operation of the statute of frauds.

3. The same held not to constitute notice to a subsequent purchaser of the lot.

Appeal from district court, Douglas county; WAKELEY, Judge.B. G. Burbank, John L. Webster, and Win S. Strawn, for appellants.

Chas. Offutt and G. W. Ambrose, for appellees.

COBB, C. J.

This action was brought by the plaintiffs and appellees to quiet their title to the original lot No. 7, of block No. 77, in the town of South Omaha, against the claim of the defendants and appellants. The plaintiffs alleged in the court below that on April 2, 1886, Alexander H. Swan and his associates, as trustees of the town of South Omaha, being seised in fee-simple of said original lot No. 7, deeded the same to the plaintiff Cary M. Hunt, by deed of general warranty, duly recorded April 3, 1886. (2) That on September 24, 1887, the plaintiff Hunt, having become possessed of the fee of the adjoining lot No. 6 of said block No. 77, subdivided the lots Nos. 6 and 7 as a subdivision of said block, by the name of “C. M. Hunt's Subdivision,” into lots numbered from 1 to 7, inclusive, a plat of which was placed of record September 27, 1887, and is referred to as “Exhibit A.” (3) That on February 1, 1887, lot No. 6 of the subdivision was conveyed by plaintiff Hunt to plaintiffs William Rocheford and Frank P. Gould, of record March 8, 1888; and on September 24, 1887, lot No. 7 of the subdivision was conveyed to plaintiff Math. Evetz, of record October 11, 1887. (4) That the plaintiffs claim title to, and are in open and notorious possession of, all of said original lot 7, of block 77, in South Omaha, under the conveyances mentioned specifically as follows: The plaintiff Hunt of the east 103 feet, being the south 60 feet of lots 1, 2, 3, 4, and 5 of said subdivision; the plaintiffs Rocheford and Gould of the east half of the west 44 feet of the original lot 7, being the south 60 feet of lot 6 of the subdivision; and the plaintiff Evetz the west 22 feet of the original lot 7, being the south 60 feet of lot No. 7 of the subdivision. That, by reason of the respective and contiguous holdings of the plaintiffs in the original lot No. 7, they have a common interest in this action, and are equally affected by the acts of the defendants hereinafter complained of. (5) That the defendants Charles Corbett and Valentine Lipp claim to be, and pretend that they are, the owners, and are entitled to the possesion, of the original lot 7 by a contract of Lipp with one Pivonka, under an alleged contract for the purchase of said lot by the trustees of South Omaha with Pivonka, and by him alleged to have been assigned to Lipp, and that Corbett claims under a deed from Lipp to him, as trustee, of record January 6, 1888. That defendants Holmes and Smith claim an interest or title to the original lot 7 under a mechanic's lion for material and labor supplied on the premises, of record, October 23, 1886. (6) That the alleged claims of defendants are entirely false. That the contract of the trustees of South Omaha to Pivonka was never assigned to Lipp, and that, at the date of Lipp's conveyance to Corbett, he had no interest, right, or title in the contract or to the premises, and that any material used by him upon the premises was wrongfully used, and without the consent or knowledge of the plaintiffs, or of either of them; but that said contract with Pivonka was duly assigned, transferred, and delivered to the plaintiff Hunt, and, in compliance with its terms, the trustees made to him the deed heretofore described for said lot 7, in block 77, of the town of South Omaha. The plaintiffs allege that they are the absolute owners of said lot, but that the defendants' pretended claim casts a cloud upon their title; and ask that the defendants, and each of them, be enjoined from asserting or claiming any interest or title in or to the said premises, or any part thereof; and pray for general relief.

“Exhibit A.

“C. M. Hunt's subdivision of lots 6 and 7, of block 77, of South Omaha.

+---------------------------------------------------------+
                ¦16 FT. ALLEY.                                            ¦
                +---------------------------------------------------------¦
                ¦104¦         ¦     ¦    ¦6   ¦    ¦    ¦    ¦104 25TH ST.¦
                +---+---------+-----+----+----+----+----+----+------------¦
                ¦   ¦         ¦     ¦    ¦7   ¦    ¦    ¦    ¦            ¦
                +---+---------+-----+----+----+----+----+----+------------¦
                ¦   ¦7        ¦6    ¦5   ¦4   ¦3   ¦2   ¦1   ¦            ¦
                +---+---------+-----+----+----+----+----+----+------------¦
                ¦   ¦Rocheford¦Evets¦Hunt¦Hunt¦Hunt¦Hunt¦Hunt¦            ¦
                +---+---------+-----+----+----+----+----+----+------------¦
                ¦   ¦and Gould¦     ¦    ¦    ¦    ¦    ¦    ¦            ¦
                +---+---------+-----+----+----+----+----+----+------------¦
                ¦   ¦25       ¦22   ¦22  ¦22  ¦15  ¦22  ¦22  ¦            ¦
                +---------------------------------------------------------¦
                ¦N. STREET.                                               ¦
                +---------------------------------------------------------+
                

The defendants Lipp and Corbett answered, admitting the title to the premises, lot 7 in block 77, in the trustees of South Omaha, and their deed to Hunt, but denied that it conveyed, in law, the premises to Hunt, or that he had any interest or title in and to the premises. They admit that he pretended to subdivide lots 6 and 7 into C. M. Hunt's subdivision, but deny that he had any right or authority so to do. (3) They admit the conveyance of Hunt to Rocheford and Gould of lot No. 6 of Hunt's subdivision, but deny that it conveyed the absolute fee-simple title to any portion of lot No. 7, of block 77, of South Omaha; and admit the conveyance to Evetz, but deny that it conveyed the absolute fee-simple title to any portion of lot No. 7, of block 77, of South Omaha. (4) They deny that the plaintiffs hold any title to or in said premises, or that they are in open and notorious possession of said original lot No. 7 of block 77, except that, claiming to be the owner of said lot on May 26, 1886, the plaintiff Hunt commenced an action of forcible entry and detainer before a justice of the peace of Douglas county, and, upon an appeal from the judgment of such justice, he obtained a judgment for the possession of the premises, and, by a writ of restitution, was put in possession; but that the defendant Lipp subsequently appealed said cause to the supreme court of this state, and that the same is now pending and undetermined. That the plaintiffs have no other or different possession than that stated, and that the grantees of Hunt took said conveyances and took possession of the premises with full knowledge of the appeal taken to the supreme court, and are charged with full knowledge of the claims of defendants, and purchased and took possession of the premises at their own risk. (5) They claim to be the owners and entitled to the possession of the original lot 7 in block 77, and they deny that the plaintiffs, or either of them, are seised of said lot, or any part thereof, or have any title or interest therein, and deny all knowledge of the mechanic's lien of Holmes and Smith. (6) They allege that on May 6, 1884, Alexander H. Swan, and his associates, as trustees of South Omaha, were the owners of the premises in dispute, and on that day sold the same to T. S. Lewis for the sum of $300, by the execution and delivery of a land contract signed by the parties; that, by subsequent assignments, the equitable title to the premises vested in Lewis was transferred to and became vested in Frank Pivonka; and that afterwards, about January 15, 1885, Pivonka and defendant Lipp entered into a verbal contract for the sale of the premises to Lipp, who agreed to pay $125 for Pivonka's equitable interest, upon the payment of which Lipp was to have received a formal assignment of the land contract, and such conveyance of the premises. (7) They allege that Lipp fully paid Pivonka $125 for his equitable interest, and $81.25 additional for the payment due on the contract of May 6, 1885, according to its terms, as will be seen by the defendants' Exhibit A. That about February 1, 1885, under this contract and sale, Lipp took peaceable possession of the premises, with the knowledge and consent of Pivonka, and has ever since retained possession and control up to the time when Hunt was placed in possession, as stated. (8) That Pivonka, in violation of his contract, and in fraud of the rights of Lipp, on October 23, 1885, pretended to sell the premises in controversy to Hunt by an assignment of the land contract purporting to convey the equitable title to Hunt, without having any right, title, or interest to or in said premises. (9) And that Hunt had notice and full knowledge of Lipp's rights and interest in the premises prior to his alleged purchase. (10) And the defendants allege that, after Hunt had...