Johns v. Carr

• Decision Date: 26 December 1958
• Docket Number: No. 34483,34483
• Citation: 93 N.W.2d 831,167 Neb. 545
• Parties: Frank H. JOHNS, Appellee, v. Elsie CARR, W. H. Winslow, and C. Ivan Winslow, Appellants.
• Court: Nebraska Supreme Court

Page 831

93 N.W.2d 831

167 Neb. 545

Frank H. JOHNS, Appellee, v. Elsie CARR, W. H. Winslow, and C. Ivan Winslow, Appellants.

No. 34483.

Supreme Court of Nebraska.

Dec. 26, 1958.

Syllabus by the Court.

1. An appeal of a cause from the district court must be considered and decided by this court on the basis of the information contained in the record presented which, if properly authenticated, imports absolute verity.

2. Delivery of a deed, an essential to its being operative, is largely a question of intent to be determined from the facts and circumstances of each case.

3. Any acts or words showing intention of the grantor to deliver and the grantee to accept a deed are sufficient to constitute a delivery of it.

4. The recording of a deed in the manner provided by law is generally evidence of the delivery and acceptance of the deed if the conveyance is beneficial to the grantee.

5. Assent of the grantee is not an essential element of the delivery of a deed; neither is it necessary that the grantee have knowledge of the deed prior to the death of the grantor.

6. A party may at any time invoke the language of the pleading of his adversary on which the case is tried, on a particular issue, as rendering certain facts indisputable.

7. An admission made in a pleading on which the trial is had is a judicial admission and constitutes a waiver of all controversy so far as the adverse party desires to take advantage of it and is therefore a limitation of the issues.

8. A judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving and dispensing with production of evidence by conceding for the purposes of litigation that the subject of the admission is true.

9. The prerequisites of granting a summary judgment are that the movant demonstrate that there is no genuine issue of fact in the case and that he is entitled to judgment as a matter of law.

Perry, Perry & Nuernberger, Lincoln, H. W. Eisenhart, Cambridge, Edwin C. Perry, Lincoln, for appellants.

Johnston & Grossman, Lincoln, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

BOSLAUGH, Justice.

The second amended petition contains the following: Appellee and Fern Winslow Johns, husband and wife, were the owners of real estate involved herein. Appellee from about August 11, 1935, had a long experience of illness and mental depression because of which he was committed to a mental hospital and subsequently discharged therefrom by habeas corpus proceedings. Appellee on or about June 22, 1953, was despondent and became intoxicated. His wife had him committed to jail and he was nervous and upset. His wife and appellants while he was in jail had a conference or conferences concerning the property involved in this case. Appellants authorized and instructed the wife of appellee to obtain a deed from him to the real estate involved herein to appellants as grantees. The wife of appellee obtained his release from jail about June 23, 1953. He returned to his home in a confused state of mind and under the influence of intoxicating beverages and drugs. He was then in doubt concerning his sanity and liberty and was afraid that he might be confined in jail or a mental institution for life. He while in the condition aforesaid, agreed as requested by his wife and appellants to sign papers on conditions that appellants would pay to appellee $5,000; that a life estate would be reserved to him and his wife or the survivor of them; and that on the death of both of them the property would be divided equally between the son of appellee and Elsie Carr, one of the appellants. The terms and conditions stated by appellee were accepted by his wife and she and appellants represented to appellee that a paper presented to him for his execution complied with and expressed the agreement and conditions required by appellee. The paper did not express the verbal agreement and conditions. He later learned appellants claimed the paper was a deed of the property that conveyed it to them. Appellants accepted the paper which purported to be a deed, filed said purported deed of record with the register of deeds of Furnas County, took possession of the real estate, and claimed to be the owners thereof because of the deed and the recording of it. Appellee received no consideration for signing the deed and his signature thereto was procured by fraud and misrepresentation to his damage in excess of $10,000. The appellants, because of the acceptance of the deed and the filing of it for record, were estopped from denying the agency and misrepresentations of the wife of appellee made to him, as he alleges. Appellants have accepted and filed the deed for record and taken possession of the real estate. It is inequitable to allow them to retain the property and its income without payment of any consideration. If the deed is valid, they should be required to pay appellee $5,000 and the deed should be reformed to comply with true agreement and the interest of appellee and his son in the real estate as agreed. If the deed is void, it should be set aside. The prayer of the petition is for relief appropriate to the allegations of the petition.

The answer of appellants admits that appellee and Fern Winslow Johns were husband and wife as alleged by appellee and denies all other statements of the second amended petition of appellee. The answer alleges that: The interest of appellee in the real estate described in the petition during the lifetime of his wife was the inchoate interest of a husband in the real estate of his wife. The wife of appellee is now deceased. Elsie Carr was a sister and W. H. Winslow and Ivan Winslow were brothers of the deceased. The real estate described in the petition was property owned by the Winslow family and it was inherited by Fern Winslow Johns from her mother before the daughter was married to appellee. The deed conveying the real estate described in the second amended petition to Elsie Carr, W. H. Winslow, and Ivan Winslow as C. Ivan Winslow, appellants, as joint tenants, subject to a life estate therein of Fern Winslow Johns, was executed by Fern Winslow Johns and Frank H. Johns, wife and husband, June 29, 1953. The deed was acknowledged before a notary public, who was an attorney, of the State of Kansas. It was delivered to the office of the county clerk of Furnas County thereafter, was recorded, and is now of record in the public records of that county. The fee of the county clerk for recording the deed was paid on the date it was recorded by Fern Winslow Johns. The grantees named in the deed had no knowledge of it until after the death of Fern Winslow Johns but they accepted it and the benefits thereof as a gift from their sister. Appellants ask that the petition be dismissed and the title to the land be quieted in them.

The reply asserted that none of the appellants had possession or control of the alleged deed or the real estate before the death of Fern Winslow Johns; that neither she nor appellee had any intention of making a gift of the real estate to appellants or any of them; and that after the death of Fern Winslow Johns appellants took and have since had possession of the real estate under claim of ownership and have had the use and benefit of it. Appellee denied all other statements of the answer of appellants and prayed that the deed be held to be void or, in the alternative, that appellee be decreed a life estate in the real estate, awarded a judgment for $10,000, and for equitable relief.

A motion for summary judgment was made by appellee for the reason stated therein that the answer of appellants admits that no delivery of the deed was made to them. The district court found that appellee was entitled to a summary judgment because the answer alleged that the deed was filed and recorded in the public records of Furnas County and the appellants had no knowledge of the deed being drawn or delivered to the county clerk for recording until after the death of their sister, Fern Winslow Johns, and that by reason thereof appellants had not accepted the deed during the lifetime of one of the grantors and the delivery of said purported deed was incomplete. The motion for summary judgment was sustained and a judgment was rendered setting aside the deed.

The certification by the court reporter and the order of allowance by the judge of the district court establish that the bill of exceptions contains all evidence offered and the evidence received in this cause. It does not show that any evidence was offered or received on December 2, 1957, or on any other date except March 8, 1958. On that date the motion of appellants for a new trial and their motion to set aside the judgment were heard, exhibits were offered in support of the motions, and they were received in evidence. This is the only occasion in the experience of this litigation that the record shows that any evidence was offered or received. The journal entry of the trial court of the hearing December 2, 1957, on the motion of appellee for summary judgment recites the motion was presented, argued, and submitted, whereupon the court took it under advisement. The journal entry of the district court of the proceedings had in the case January 8, 1958, states that after careful consideration of the pleadings, argument, and written briefs the court finds that the action involves the legality of a certain deed. There is no mention in either of the journal entries of evidence having been taken or considered in the hearing or decision of the motion for summary judgment. The statement of...