Johnson v. Kern

• Decision Date: 19 April 1929
• Docket Number: No. 26243.,26243.
• Citation: 225 N.W. 38,117 Neb. 536
• Parties: JOHNSON v. KERN ET AL.
• Court: Nebraska Supreme Court

117 Neb. 536

225 N.W. 38

JOHNSON

v.KERN ET AL.

No. 26243.

Supreme Court of Nebraska.

April 19, 1929.

Syllabus by the Court.

Evidence examined, and held to support and justify the action of the trial court in its denial of plaintiff's petition.

Appeal from District Court, Lincoln County; Tewell, Judge.

Action by Helen Johnson against Eva Kern, sometimes known as Eva McNott, and sometimes known as Eva McNutt, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

See, also, 117 Neb. ___, 221 N. W. 959.

Hastings, District Judge, dissenting.Craft, Edgerton & Fraizer, of Aurora, Beeler, Crosby & Baskins, of North Platte, and J. P. Voorhees, of Sloan, Iowa, for appellant.

H. M. Sullivan, of Broken Bow, Halligan, Beatty & Halligan, of North Platte, and T. F. Hamer, of Kearney, for appellees.

Heard before GOSS, C. J., GOOD, THOMPSON, EBERLY, and DAY, JJ., and HASTINGS and REDICK, District Judges.

EBERLY, J.

Action in equity for a specific performance of an alleged verbal contract by Marinda Hovey, also known as Minnie Kern, that she “would adopt plaintiff as her own child,” giving to plaintiff all the rights of inheritance by law, and that plaintiff as the adopted child of Marinda Hovey “should inherit the property of said Marinda Hovey, the same as if she were the daughter of the blood of said Marinda Hovey,” and that certain real estate described be decreed to be held in trust for plaintiff on account of such agreement. Defendants joined issue. Trial to the court resulting in a general finding and certain special findings against plaintiff, including a finding that there was no “agreement or obligation on the part of the said Marinda Hovey to, in any manner whatsoever, convey or leave to the plaintiff any portion of the property of which said Marinda Hovey died seised,” and that no agreement of any kind, either verbal or written, was established to have ever been made between said Marinda Hovey and any other persons by which the said Marinda Hovey obligated herself to convey to plaintiff any portion of her estate. From this judgment plaintiff appeals.

At a former hearing by this court a judgment of affirmance was entered. Johnson v. Kern, 117 Neb. 536, 221 N. W. 959. Argument was allowed on a motion for rehearing and we have been favored by additional brief and additional oral argument.

The direct evidence of plaintiff's mother in the record is to the effect that, on a date not fixed, Marinda Hovey, then ordinarily known as Minnie Kern, in a house of prostitution in Sioux City, Iowa, wherein the mother, Maude McCauley, was then an inmate and in which the plaintiff, then a little child, was kept, and of which Marinda Hovey was then the proprietress, orally agreed with the plaintiff's mother that plaintiff, then a child of three or more years, should be adopted by her, Marinda Hovey, given a good education, and should be made Marinda Hovey's sole heir; that the next morning in this house of prostitution in the presence of Mrs. Thurston, then the police matron of Sioux City, Iowa, this conversation was repeated in substance, and the plaintiff's mother and Marinda Hovey mutually executed “adoption papers” which Mrs. Thurston had prepared and brought with her; that the mother of plaintiff signed these documents, according to her testimony, without reading the same, but evidently assuming that they were made in accordance with the oral understanding.

These adoption papers, if actually made, were never recorded and there is no evidence in the record which discloses in any manner the terms which these papers actually contained.

The evidence of the mother is also in effect positive and without qualification that all negotiations and conversations between the plaintiff's mother and Marinda Hovey on the subject of the adoption, including the execution of the final and only papers of adoption, took place at one or more of the following places, viz., at the depot in Sioux City, Iowa, and in a “taxi” en route to 301 Pearl street on the night of plaintiff's first arrival at Sioux City, or at 301 Pearl street, the house of prostitution, during a few days immediately following plaintiff's first arrival. The testimony of this witness emphasizes the statement of her reluctance to give up her child and of the sudden evident infatuation of Marinda Hovey for plaintiff and her insistence that plaintiff's mother relinquish her offspring to this proprietress of the house of ill fame.

Thus, we have a right claim based on negotiations asserted to have been had at a certain though, as to exact date, an indefinite time, and at a certain place, with definite parties present, inspired by particular motives, and for the accomplishment of a definite purpose.

The record contains other evidence offered in behalf of plaintiff, some of which corroborates in part the testimony of the mother of the plaintiff and much of which conflicts at least in material portions with this evidence, in the important particulars of place, motives, purpose and substance.

The evidence in behalf of the defendants, both direct and circumstantial, if believed, fairly tends to refute and is certainly wholly inconsistent with the claims of the plaintiff and with the statements of her witnesses.

In addition to this conflicting evidence there were probate proceedings had in the estate of Marinda Hovey, after the latter's death in the spring of 1904, and also proceedings had in the district court for Woodbury county, at Sioux City, Iowa, relative to the appointment of a guardian for plaintiff immediately following Marinda Hovey's death. Marinda Hovey, at the time of her decease, owned and possessed real and personal estate situated in Woodbury county, Iowa, which plaintiff now claims was then of the value of $50,000 or $60,000. Her husband, Edward C. Hovey, was, upon his own petition, duly appointed administrator of this estate by the district court for Woodbury county, Iowa, and administration was had therein as provided for by the laws of Iowa. In due time the proceedings were completed and Edward C. Hovey, as administrator, filed his final report, which was subscribed by him and sworn to before Joseph W. Hallam, notary public, and which was duly approved by the district court for Woodbury county, Iowa, on April 22, 1905. This final report contains these allegations, among others:

“That the only heirs at law of said Marinda Hovey, deceased, are this administrator [Edward C. Hovey], who was her husband, and Wm. Kern and Marinda Kern, his wife, who are the father and mother of the said Marinda Hovey, deceased, there being no other heirs.

That the above named heirs have all agreed among themselves as to the disposition of the proceeds of said estate and the taxes upon the real property have been paid.

That the personal property has been disposed of and either converted into money or divided among the heirs as agreed to by them, and most of the real estate has been sold under such agreement, and that which has not been sold will be held by said heirs in common, as provided by law.”

It appears from the public records of the recorder's office of Woodbury county, Iowa, that the real estate thus inherited by Edward C. Hovey and William Kern and his wife was in 1904 and 1905 conveyed and transferred by warranty deeds. Some of these conveyances were made to third parties, William Kern and wife and Edward C. Hovey, as widower, joining as grantors. At least one of these warranty deeds was a conveyance of an undivided one-half interest in certain real estate described therein made by William Kern and wife to Edward C. Hovey. This deed was executed and acknowledged in the presence of Joseph W. Hallam, as notary public. In the guardianship proceedings the petition signed and sworn to by William Kern before the same Joseph W. Hallam, notary public on the 20th day of April, 1904, sets forth that “Agnes McCauley” has been abandoned by her parents who are nonresidents of Iowa, and is now in the care and custody of plaintiff, and that “your petitioner states that said minor has no property.” The bond given was in the sum of $200 and executed by William Kern and Edward C. Hovey. Under the date of April 22, 1905, there appears a report signed and sworn to by William Kern before Joseph W. Hallam, notary public, which was filed in said proceedings, and avers that “said Agnes McCauley has no property of any kind whatever.” Edward C. Hovey was killed in a railway accident May, 1913. Joseph W. Hallam or J. W. Hallam, as his name also appears, was the personal attorney of Marinda Hovey, and shortly before her death had been consulted and retained by her to bring a divorce action and from the evidence presumably was well acquainted with her affairs.

It also appears, as admitted in the record, that William Kern, Sr., purchased the Nebraska 800-acre ranch in 1905, paying $6,000 in cash and assuming a mortgage of $2,000, taking the title in his own name. The evidence of the defendants is to the effect that William Kern, Sr., made a preliminary payment of $100 with the purpose of having his sons examine the land thus purchased before completing the transaction. The oral understanding between the father and sons at that time was that, if the land suited the sons, the sons were to break out the sod, farm and cultivate it, make necessary improvements thereon, and pay a share of the income to the father during his lifetime, and, upon his death, should become each the owner of his own share therein.

Without unduly extending this opinion by recital of the evidence, it may be said that the evidence of the defendants, if believed, fairly establishes the making of this oral agreement and substantially complies with the same, thus, for example, in addition to labor performed, Richard Kern, a son of William Kern, Sr., testified that he expended $1,800 in cash in improvements made by him on this land; and, also, the testimony of William Kern, Jr., another son, is that he contributed...