Kinkenon v. Hue

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before BOSLAUGH and WHITE, JJ., and COLWELL, RIST, and HOWARD; WHITE; HOWARD; COLWELL
• Citation: Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (Neb. 1981)
• Decision Date: 16 January 1981
• Docket Number: No. 43071,43071
• Parties: Betty L. KINKENON, Appellee, v. Percy L. HUE, Appellant.

Page 77

301 N.W.2d 77

207 Neb. 698

Betty L. KINKENON, Appellee, v. Percy L. HUE, Appellant.

No. 43071.

Supreme Court of Nebraska.

Jan. 16, 1981.

Syllabus by the Court

1. Certificates of Title: Motor Vehicles: Evidence. A certificate of title to a motor vehicle is generally conclusive evidence in this state of the ownership of the vehicle. Exceptions to this rule apply only to prevent fraud and coercion.

2. Joint Tenancy. Where an instrument is silent as to the interests taken by joint tenants, the presumption is that their interests are equal.

3. Equity: Appeal and Error. In appeals to this court in suits in equity, the trial shall be de novo on questions of fact preserved for review, and we must reach an independent conclusion in findings of fact without reference to the conclusion reached in the District Court.

4. Equity: Appeal and Error. Where evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying, and therefore must have accepted one version of the facts rather than the opposite.

5. Contracts: Consideration. Personal services are sufficient consideration to support an agreement. There is no more reason to presume that services are contributed as a gift than to presume that funds are contributed as a gift.

6. Illegal Contracts: Sexual Misconduct: Contracts. A bargain in whole or in part for, or in consideration of, illicit sexual intercourse or of a promise thereof, is illegal; but subject to this exception, such intercourse between parties to a bargain previously or subsequently formed does not invalidate it.

7. Oral Contracts: Contracts. The terms of an oral agreement are to be found in the parties' respective versions of the agreement, and their acts and conduct in light of the subject matter.

8. Equity: Specific Performance: Oral Contracts. Equity will grant specific performance of an oral agreement to transfer property to another if it is proved by evidence convincing and satisfactory and if it has been wholly performed by one party and its nonperformance would be a fraud on him.

William J. Tighe, Omaha, for appellant.

Bernard T. Schafersman, Fremont, for appellee.

Heard before BOSLAUGH and WHITE, JJ., and COLWELL, RIST, and HOWARD, District Judges.

WHITE, Justice.

This case is on appeal from the District Court for Washington County, Nebraska. Appellee sought to recover from appellant property she alleged she was entitled to pursuant to an oral agreement between the parties. Appellant denied the existence of a contract, alleged that appellee is not entitled to the property, and asserted that, had there been a contract, the same would have been illegal and unenforceable. Appellee also alleged that appellant made a gift to her of property now in his possession and she requested return of that property. Appellant argued that no gift was intended or proved. Appellee's final cause of action alleged that she performed valuable services for appellant and she requested payment of the value thereof. Appellant contended that the benefits to appellee exceeded the value of her services. The trial court found generally for the appellee and awarded her one-half the value of the property titled in the parties' names as joint tenants, and $38,979.37 under the express oral agreement between the parties. Appellant appeals and assigns as error that the court erred by finding (1) That appellee had any interest in the jointly held property; and (2) That appellee had any interest in appellant's property by virtue of an oral agreement.

Appellant and appellee lived together from March 1972 until June 1978. Although they never married each other, they did engage in sexual relations. At the time appellant invited appellee to live with him, he was 54 years old. His wife had predeceased him. He lived alone on a 185-acre farm near Herman, Nebraska, and cared for his father who lived nearby on a 160-acre farm. Appellee at the time was a 52-year-old woman whose husband had predeceased her, and she lived with her daughter in Fremont, Nebraska.

In January 1972, the appellant invited appellee to move onto his farm. In March 1972, appellee agreed. The record shows that appellant had asked appellee to marry him but that appellee declined. Between March 1972 and June 1973, appellant placed appellee's name as joint owner with rights of survivorship on three bank accounts, lockboxes, two automobiles, later a third automobile, and approximately $24,000 of mutual funds, and made her the beneficiary of both of his life insurance policies. The evidence is not controverted that while appellee lived with appellant she cleaned the house, washed clothes, cooked the meals, ran errands for the appellant, cared for the lawns and garden, canned food, cared for appellant's father while he was alive, did the bookkeeping for appellant's business and farm operations, and provided nursing services to appellant while he was convalescing.

It was appellee's testimony that when she agreed to move onto the farm, she did so and agreed to perform the above services because appellant stated that he had the means and would take care of and provide for her for the rest of her life. Appellant agrees that the services were performed and accepted but denies that they were rendered pursuant to any agreement. In 1974, appellant and appellee began construction of a new house on one of appellant's farms. The house was completed in 1975. The testimony of both appellant and appellee established that appellant supplied the financial consideration for the house; both parties assisted in the planning, decorating, and furnishing of the house. Appellee's testimony, corroborated by two other witnesses, was that appellant had built the house for appellee and that she was entitled to live in it for as long as she lived. Appellant testified that he had the house built for appellee and himself, but denied the existence of an agreement that appellee was entitled to it for the rest of her life.

The trial court found in favor of appellee, and the record is sufficient to support a finding that appellee agreed to provide homemaking and other domestic services, as well as business skills, in return for appellant providing for her daily needs and her future security. In 1978, appellee moved back into Fremont. Her testimony was that appellant had threatened her and she was concerned for her safety. She then brought this action to recover property titled in her name in appellant's possession and the value of a life estate in appellant's home.

Appellee asserted in her petition that appellant had made a gift to her of one-half the value of each of three cars which appellant had titled in his and appellee's names as joint tenants with rights of survivorship. On appeal, appellant argues that the trial court erred by applying to this situation the rule adopted by this court in Hoover v. Haller, 146 Neb. 697, 21 N.W.2d 450 (1946). In that case, we held that, between husband and wife, where the party who provided the consideration titles property in both names as joint tenants, the presumption is that one spouse has made a gift to the other and each has an equal interest in the property. The record in this case shows that the parties were not husband and wife. The Nebraska certificate of title act, Neb.Rev.Stat. §§ 60-101 to 117 (Reissue 1978), controls this situation. "A certificate of title to a motor vehicle is generally conclusive evidence in this state of the ownership of the vehicle." Turpin v. Standard Reliance Ins. Co., 169 Neb. 233, 234, 99 N.W.2d 26, 28 (1959). The exceptions to this rule apply only to prevent fraud and coercion. Forman v. Anderson, 183 Neb. 715, 163 N.W.2d 894 (1969). As in the Forman case, the act of the appellant in placing the title in the names of both himself and appellee was done freely and voluntarily. There was no showing of a mistake of fact, or of any coercion or fraud.

Where the instrument is silent as to the interests taken by joint tenants, the presumption is that their interests are equal. Giles v. Sheridan, 179 Neb. 257, 137 N.W.2d 828 (1965).

In view of the above, we conclude that there is no merit to appellant's first assignment of error.

Appellant's second assignment of error states that the trial court erred in finding that appellee was entitled to a life estate in the house built by appellant and appellee in 1974 on appellant's property. Appellee asserts, as the basis for her claim, an express oral agreement between the parties. She alleges that, in consideration for her moving into appellant's home, providing him with domestic services, business aid, and nursing skills, he promised to provide for her for the rest of her life. She now asks for specific performance of that contract. Appellant's position is that there was no such agreement, and had there been it would be void and in violation of public policy and the statute of frauds.

In appeals to this court in suits in equity, the trial shall be de novo on questions of fact preserved for review, and we must reach an independent conclusion in findings of fact without reference to the conclusion reached in the District Court. Neb.Rev.Stat. § 25-1925 (Reissue 1979). "However, it is also the well-established rule that where the evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying, and therefore must have accepted one version of the facts rather than the opposite." Edmunds v. Edwards, 205 Neb. 255, 266, 287 N.W.2d 420, 426 (1980).

The trial court specifically found that appellee had proved the existence of an express oral agreement and established that, in exchange for her services, appellant was to provide her with the use of the home...