Jenkins v. Jenkins
| Decision Date | 07 April 1949 |
| Docket Number | s. 32494,32495. |
| Citation | 36 N.W.2d 637,151 Neb. 113 |
| Parties | JENKINS et al. v. JENKINS et al. (two cases). |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. When two or more persons employ the same attorney in relation to the same business, their communications are not privileged between themselves, even though their interests may be diverse, where the disclosures are made in the presence of all parties concerned, or are intended for the information of all parties.
2. A constructive trust is a relationship with respect to property subjecting the person by whom the title is held to an equitable duty to convey it to another on the ground that his acquisition or retention of the property is wrongful and that he would be unjustly enriched if he were permitted to retain the property.
3. The law is well established that each case is to be determined from the facts, circumstances, and conditions, as presented therein.
4. The burden is on the party claiming the estate of a person deceased under an alleged oral contract, to prove such contract, the terms of which must be clear satisfactory, and unequivocal, and that the acts of such party constituting performance were such as were referable solely to the contract sought to be enforced, and not such as might be referable to some other or different contract.
Beatty Clarke & Murphy and Earl E. Morgan, all of North Platte for appellants.
E. H. Evans and C. L. Baskins, both of North Platte, for appellees.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This appeal involves two actions in equity, one for the partition of certain real estate, the other to quiet title to an undivided two-fifths interest therein of Pearl E. Crable, deceased.
It appears from the record that from and after 1902, until 1941, William H. Jenkins was the owner of the northwest quarter and the southwest quarter of Section 19, Township 14 North, Range 32 West, sixth principal meridian, situated in Lincoln County, Nebraska, except a strip of land conveyed to the state for road purposes and a strip of land conveyed to a drainage district and occupied by it for right-of-way across said lands, subject to two mortgages in the amount of $16,000. William H. Jenkins departed this life in 1941. By his will he devised this land to his children, Elmer R. Jenkins, Lizzie La-Fevers who predeceased him her share going to Dorthey Leatherwood her daughter and sole surviving heir at law, Pearl E. Crable, Harry E. Jenkins an adjudged incompetent, and Jay O. Jenkins, each an undivided one-fifth interest, and to his daughter Laura E. Bales he devised the residue of his estate consisting of real estate and personal property. The mortgage indebtedness was compromised with the approval of the district court by the administrator with the will annexed, giving a mortgage to one A. E. Holtgren in the amount of $12,000. After the distribution of the estate of William H. Jenkins, Dorthey Leatherwood and her husband conveyed her one-fifth interest in this land to Jay O. Jenkins and Pearl E. Crable for $2,500, and on the same day Jay O. Jenkins, his wife, and Pearl E. Crable, gave to Dorthey Leatherwood a mortgage for $1,850 as part of the purchase price of her interest in the land, subject to a $12,000 mortgage to A. E. Holtgren. The deed was subject to the same mortgage.
On August 10, 1944, Elmer R. Jenkins commenced a suit for partition of this land, alleging that he and Harry E. Jenkins each owned an undivided one-fifth interest therein and that Jay O. Jenkins and Pearl E. Crable each owned an undivided three-tenths interest therein, the entire estate being subject to the Holtgren mortgage of $12,000, and the one-fifth interest acquired by Jay O. Jenkins and Pearl E. Crable from Dorthey Leatherwood being subject to a $1,850 mortgage.
At the referee's sale held November 1, 1944, Jay O. Jenkins bid $34,000 which included the mortgage indebtedness to Holtgren upon which there was due approximately $10,000. This bid was subject to drainage district assessments in the amount of $2,695 exclusive of the mortgage. The sale was confirmed on February 5, 1945. After deducting the mortgage indebtedness and the expenses of the proceedings there was a net sum of $23,469.84 for distribution among the owners of the land: To Harry E. Jenkins and Elmer R. Jenkins each the sum of $4,693.94, and to Jay O. Jenkins and Pearl E. Crable each the sum of $7,040.95 subject to the mortgage interest of Dorthey Leatherwood in the sum of $450 which sum was to be deducted equally and proportionately from the shares otherwise due Jay O. Jenkins and Pearl E. Crable. The referee filed receipts showing distribution of the proceeds of the sale, including the release of the Dorthey Leatherwood mortgage.
The Holtgren mortgage was released on February 9, 1945, and on the same day Jay O. Jenkins and wife, and Pearl E. Crable gave a mortgage to Holtgren on this land for $18,400 to secure their notes for that sum. Ten thousand dollars of this sum represented the balance due Holtgren on the prior mortgage and $8,400 was paid to the referee upon the bid of Jay O. Jenkins to satisfy it.
On February 9, 1945, the referee's deed was executed in favor of Jay O. Jenkins and was recorded March 19, 1945. On the same day Jay O. Jenkins and wife executed a deed to an undivided two-fifths interest in the land to Pearl E. Crable, 'subject to first mortgage to A. E. Holtgren for $18,400.00 which both parties have executed upon the entire premises and of which said mortgage grantee assumes and agrees to pay two-fifths thereof as between the parties hereto.' The deed recites a consideration of 'one dollar and assumption of indebtedness.'
Before confirmation of the sale Elmer R. Jenkins was dissatisfied with the amount to be paid by Jay O. Jenkins and threatened to file objections to confirmation of the sale. By agreement between Jay O. Jenkins and Elmer R. Jenkins, the latter was to receive $5,000 for his one-fifth interest in consideration of permitting the sale to be confirmed without objections on his part so, on November 25, 1944, when this agreement was made, Jay O. Jenkins gave his check for $1,500 to Elmer R. Jenkins to apply on the agreement. On December 6, 1944, Elmer R. Jenkins and wife executed a warranty deed to Elmer R. Jenkins' one-fifth interest to Jay O. Jenkins.
Pearl E. Crable died March 10, 1946, intestate. Her estate was administered in the county court of Lincoln County. She left as her sole and only heirs at law Elmer R. Jenkins, Harry E. Jenkins, Jay O. Jenkins, Laura E. Bales, and Dorthey Leatherwood, niece, and whatever estate she owned at the time of her death descended to her said heirs each an undivided one-fifth interest. At the time of her death Pearl E. Crable was the guardian of Harry E. Jenkins, incompetent. The inventory filed by the administrator for Pearl E. Crable's estate listed an undivided two-fifths, interest in the land heretofore described.
After the administration of his father's estate, Jay O. Jenkins managed the farm, collected the rents, and paid the expenses, certain amounts on the principal, and interest on the mortgage. On March 15, 1943, Pearl E. Crable gave a power of attorney to Jay O. Jenkins with respect to the management of her interest in the land left to her by her father. Another agreement appears in the record under date of December 23, 1941, between the parties and the mortgagee A. E. Holtgren, appointing him to manage and operate the land during the term of the mortgage and until the same was fully discharged.
The defendant Jay O. Jenkins, in his answer and cross-petition in the two actions, alleges that he is the sole fee simple title owner of all the real estate described in the plaintiffs' petition, and that none of the parties have any interest or acquired any title thereto, and prayed title be quieted in him.
In the partition action the defendant Jay O. Jenkins in his cross-petition, alleged an oral agreement made between himself and Pearl E. Crable to the effect that he should have the absolute fee simple title in the land, and in consideration of the same he was to assist Pearl E. Crable during her lifetime with reference to taking care of her and managing her financial affairs for the reason that she was in poor health; and, further, the agreement provided that upon his death his wife would have the life estate, and upon her death the land would go to Pearl E. Crable. Pursuant to and in the performance of the understanding of such agreement, the deed to Pearl E. Crable was never delivered to her nor recorded, but left within the exclusive possession of Jay O. Jenkins.
The defendant Jay O. Jenkins further alleged that he had never been repaid by Pearl E. Crable for any part of the interest purchased by him from Dorthey Leatherwood, nor any part of other moneys expended by him for said real estate. The prayer was to quiet title to the real estate in Jay O. Jenkins, and that all the other parties to the action be adjudged to have no title or interest therein.
The record discloses that the deed from Jay O. Jenkins and his wife to Pearl E. Crable conveyed an undivided two-fifths interest in the land in question, subject to the first mortgage of A. E. Holtgren for $18,400, was signed and acknowledged in the presence of a notary by the grantors and was transmitted by letter dated February 13, 1945, to Pearl E. Crable by counsel who prepared the deed. The note and mortgage to A. E. Holtgren and the deed to Pearl E. Crable were executed about the same time.
Jay O Jenkins testified that Pearl E. Crable gave her personal check dated February 10, 1945, to Elmer R. Jenkins for $306.03 to pay up the balance of the partition proceedings. One-half...
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