Hylton v. Krueger

• Decision Date: 08 November 1940
• Docket Number: 30882.
• Parties: HYLTON v. KRUEGER ET AL.
• Court: Nebraska Supreme Court

294 N.W. 485

138 Neb. 691

HYLTON v. KRUEGER ET AL.

No. 30882.

Supreme Court of Nebraska.

November 8, 1940

Syllabus by the Court.

A parol modification of an annuity agreement constituting a charge on real estate, which changes the obligation into one to furnish such farm products and provisions as the annuitant may need and request, is valid, and complete performance or execution of the modified agreement will discharge the real estate lien.

Appeal from District Court, Polk County; Hastings, Judge.

Action by Harry I. Hylton, administrator with the will annexed of the estate of Eva Krueger, deceased, against Emma Krueger and others to foreclose an equitable lien, under a reservation in a deed. From an adverse judgment, the plaintiff appeals.

Affirmed.

Benton Perry, of York, for appellant.

Mills & Mills and Phil B. Campbell, all of Osceola, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER MESSMORE, and JOHNSEN, JJ.

JOHNSEN, Justice.

This is a suit by the administrator with will annexed of the estate of Eva Krueger, deceased, to foreclose an equitable lien under a reservation in a deed, for some annuity payments of $300 each claimed to have accrued in favor of plaintiff's decedent from January 1, 1926, until her death in August 1935. The trial court, after a hearing on the merits, dismissed plaintiff's action, on the ground that the annuity obligation had been validly modified by parol, and, as modified, had been fully performed and the lien thereby discharged, and that the suit was accordingly without equity. Plaintiff has appealed.

The case has been before us previously in Hylton v. Krueger, 134 Neb. 66, 277 N.W. 792, on the sufficiency of the petition as against a demurrer, and reference can easily be made to that opinion for a statement of its allegations.

It appears that in 1904 Fred Krueger, who was the husband of defendant Emma Krueger and the father of the other defendants, entered into an oral agreement with his parents, August and Eva Krueger, to pay them or the survivor, for life, an annuity of $100 and to supply them with farm provisions, in consideration of which they agreed to convey to him a 320-acre farm. Fred Krueger made the annuity payments and furnished the provisions pursuant to the agreement until his death in 1917, but without ever receiving a conveyance of the property. Upon his death, August and Eva Krueger entered into a lease agreement for the land with his widow, Emma Krueger, and executed a conveyance of the title thereto to Fred and Emma Krueger's children. These instruments, which were executed together and were recorded, provided that Emma Krueger should have the right to occupy the land during her lifetime, but should have no other interest in the property; that she should pay August and Emma Krueger, and the survivor of them until the latter's death, the sum of $300 per year; that, if Emma Krueger died before the annuity obligation had been discharged, her children, to whom the title had been conveyed, should continue the payments until August and Eva Krueger both were dead; and that the annuities to be paid were to constitute a specific reservation from the title conveyed.

According to defendants' contention, a few days after the lease agreement became operative in 1917, and before any breach had occurred, it was agreed orally between August and Eva Krueger and Emma Krueger that the obligation should be modified to require Emma Krueger to pay, instead of an annuity of $300, the sum of $100 annually, and to furnish August and Eva Krueger and the survivor of them with such provisions from the farm as she was able to supply and as they might require. It was contended further that this modified agreement continued in effect and was duly complied with by Emma Krueger until August Krueger's death, and that at that time another oral modification was agreed upon between Eva Krueger and Emma Krueger, by which no more cash payments were to be made, but Emma Krueger was simply to furnish Eva Krueger with such farm provisions as she might request. The contract as thus modified was claimed to have been duly recognized by both Eva Krueger and Emma Krueger and to have been faithfully performed down to the time of Eva Krueger's death.

The evidence leaves us with the clear conviction, as it did the trial judge, that the parol modifications, were made, as defendants contended, and that Emma Krueger thereafter performed all the obligations of the modified agreement. Since August and Eva Krueger were deceased, Emma Krueger could not, of course, testify to the conversations or the circumstances by which the modifications were created. There was disinterested testimony, however, to the effect that, at the time the first modification is claimed to ...