King v. De Tar

• Decision Date: 31 July 1924
• Docket Number: 22810
• Citation: 199 N.W. 847,112 Neb. 535
• Parties: ANDERSON D. KING, APPELLEE, v. DAVID F. DE TAR ET AL., APPELLEES: WALTER C. SMITH, INTERVENER, APPELLANT
• Court: Nebraska Supreme Court

199 N.W. 847

112 Neb. 535

ANDERSON D. KING, APPELLEE, v. DAVID F. DE TAR ET AL., APPELLEES:

WALTER C. SMITH, INTERVENER, APPELLANT

No. 22810

Supreme Court of Nebraska

July 31, 1924

APPEAL from the district court for Box Butte county: WILLIAM H WESTOVER, JUDGE. Reversed, with directions.

REVERSED, WITH DIRECTIONS.

Lee Basye and Stewart, Perry & Stewart, for appellant.

Mitchell & Gantz, contra.

Heard before LETTON, ROSE, DEAN, DAY and GOOD, JJ., BLACKLEDGE and REDICK, District Judges.

OPINION

DEAN, J.

The petition alleges that Anderson D. King is the owner in fee simple of an 80-acre tract of land, namely, the south half of the northwest quarter of section 31, township 26, range 49 west sixth P. M., in Box Butte county, Nebraska, and that defendants David F. DeTar and Ethel DeTar, his wife pretending to be owners, executed and delivered to Joshua Palmer a mortgage for $ 1,200, dated March 26, 1913, recorded March 28, 1913; that Palmer and wife executed and delivered to Walter C. Smith, intervening defendant, a mortgage for $ 833 on the land in suit, dated March 31, 1917, and recorded May 25, 1920. The foregoing instruments, and others in question here, are shown by an abstract. The petition invokes the court to decree that the mortgages, and also certain other conveyances hereinafter referred to, be declared null and void and canceled of record, and that the cloud thereby alleged to be cast upon the title be removed.

Walter C. Smith, intervener, in an amended answer and cross-petition, alleging ownership as grantee of the Palmers, avers that Anderson D. King never had any right, title or interest in or to the land in question, and that some one erased the name of David F. DeTar, as grantee, from the granting clause of a deed, dated March 25, 1913, wherein Inez Palmer, unmarried, was grantor, and in place of DeTar's name inserted the name of "Anderson D. King" in the granting clause of the deed and caused the deed, so changed, to be filed in the office of the county clerk, and ex officio register of deeds, for Box Butte county, Nebraska. The court held the King deed valid and quieted the title in those claiming under him. Defendant Smith has appealed.

The beginning point, if not the main point in the case, has to do with the Inez Palmer deed which purports to convey the title to the land in suit to Anderson D. King. The original deed is not in the record, but a typewritten copy appears therein which is certified by the register of deeds for Box Butte county as having been recorded March 19, 1917. The copy follows:

"Warranty Deed. Inez Palmer to Anderson D. King. Know all men by these presents: That Inez Palmer (single) of the County of Lancaster, and State of Nebraska, for and in consideration of the sum of Dollars in hand paid, do hereby grant, bargain, sell, convey and confirm unto Anderson D. King, of the County of Lancaster, and State of Nebraska, the following described real estate situated in Sec. 31, T. 26, R. 49, in Box Butte County, and State of Nebraska, to wit: The south half (1/2) of the northwest quarter (1/4) of section thirty-one (31), town twenty-six (26), Range 49 (49).

"To have and to hold the premises above described, together with all the tenements, hereditaments and appurtenances thereunto belonging, unto the said David F. DeTar, and to his heirs and assigns, forever.

"And I do hereby covenant with the said grantee, and with his heirs and assigns, that I am lawfully seised of said premises; that they are free from incumbrance, that I have good right and lawful authority to sell the same; and I do hereby covenant to warrant and defend the title to said premises against the lawful claims of all persons whomsoever. And the said hereby relinquishes all in and to the above described premises. Signed this 25th day of March, A. D. 1913. Inez Palmer. In presence of Geo. M. Gates."

In respect of material recitals contained in the deed, when it was executed by Inez Palmer, as grantor, three witnesses testified on the part of Smith, namely, Inez Palmer, now Mrs. Inez Olson, David F. DeTar, and Joshua Palmer.

Mrs. Inez Olson testified that she never saw nor heard of Anderson D. King until about the time the case was tried; that David F. DeTar was the grantee named in the deed, and that she never authorized the erasure of DeTar's name and the insertion of King's name in DeTar's place as grantee; that the land was owned at the time by her father, and she, at his request, executed the deed.

David F. DeTar testified that he bought the land from Joshua Palmer in 1913, and that to secure the purchase price he executed a mortgage for $ 1,200 in favor of Palmer; that Inez Palmer was grantor and that he was the grantee named in the deed; that he never authorized any person to erase his name and insert therein the name of King or any other person as grantee; that he did not record the deed because he thought the land was of small value; that in April or May, 1914, he conveyed the land in suit by quitclaim deed to a man named Hale, in consideration of Hale assuming payment of the Palmer mortgage; that Hale never recorded his deed nor paid the Palmer mortgage, and that he, DeTar, afterward gave a quitclaim deed to Joshua Palmer in consideration of being released from payment of the $ 1,200 purchase price mortgage debt.

Joshua Palmer is Inez Olson's father. He corroborated her evidence and that of Mr. DeTar in every essential particular in respect of the material facts which attended the execution of the DeTar deed, and testified that he never heard of King nor received any consideration from him or any person in his behalf for the land, and further testified that he assigned the $ 1,200 note and mortgage to Walter C. Smith and executed and delivered to him an $ 833 note secured by mortgage on the land.

Walter C. Smith testified that Palmer and wife executed and delivered to him a quitclaim deed to the land in suit...