Klitzing v. Didier, 82-593
| Decision Date | 05 August 1983 |
| Docket Number | No. 82-593,82-593 |
| Citation | 337 N.W.2d 418,215 Neb. 122 |
| Parties | Josie J. KLITZING, Appellee and Cross-Appellant, v. Mary DIDIER and John Didier, Appellants and Cross-Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Actions: Pleadings. New and distinct matter not maintainable as a counterclaim under statutory provisions and not involved in a proper determination of the subject matter of the original suit must be litigated in a separate action.
2. Torts: Damages: Pleadings. A claim for damages for tort cannot be used as a setoff against actions on contracts or suits on promissory notes secured by real estate mortgages.
3. Parties. Indispensable parties to a suit are those who not only have an interest in the subject matter of the controversy but also have an interest of such a nature that a final decree cannot be made without affecting their rights or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.
George A. Sommer, Scottsbluff, for appellants and cross-appellees.
Robert G. Simmons, Jr., of Wright, Simmons & Selzer, Scottsbluff, for appellee and cross-appellant.
This is an action by Mary Didier against Josie Klitzing on a promissory note and mortgage. Josie Klitzing filed a counterclaim alleging that Mary had committed a fraud upon Stephen Crouse, and had also conspired with Stephen Crouse to defraud Josie Klitzing in connection with a different land sale transaction. The District Court found that Josie Klitzing was indebted to Mary Didier on the note and mortgage in the sum of $5,680 and entered judgment in that amount, together with interest. The court also found that Mary Didier committed a fraud upon Stephen Crouse and had retained the fruits of the fraud. The court then entered judgment for Josie Klitzing against Mary Didier for $5,680 plus interest and ordered that the judgments be offset against each other. Mary and John Didier have appealed and Josie Klitzing has cross-appealed.
In July 1981 the plaintiff, Josie Klitzing, filed a petition against Mary Didier and John Didier, her husband, Stephen H. Crouse and Paula Crouse, his wife, and Patrick Douglas Crouse and Jarolyn Crouse, his wife, to void and set aside two deeds to 1,480 acres of ranch land. The deeds were executed in 1980. One deed was a warranty deed executed by Josie Klitzing to Stephen H. Crouse, and one was a quitclaim deed executed by Mary Didier to Stephen H. Crouse.
On August 14, 1981, the defendant Mary Didier filed a counterclaim against the plaintiff, Josie Klitzing, on a promissory note and mortgage for $22,720 dated May 6, 1974. The note and mortgage were executed and delivered in connection with the purchase and sale of 320 acres of land from Mary Didier to Josie Klitzing, the deed for which was executed on May 6, 1974.
On October 8, 1981, the plaintiff, Josie Klitzing, dismissed her petition without prejudice. The counterclaim of Mary Didier against Josie Klitzing therefore became in effect a plaintiff's petition and the action proceeded accordingly. The Crouses were no longer parties.
Josie Klitzing answered Mary's counterclaim and admitted the execution of the note and mortgage, but alleged that they were without consideration and based upon mutual mistake. She also pleaded estoppel and undue influence.
Josie Klitzing also filed a cross-petition seeking to set aside the 1980 deeds referred to in her initial petition, and alleging that Mary Didier had committed fraud against Stephen Crouse, and that Mary Didier and Stephen Crouse had conspired to defraud Josie Klitzing in connection with the 1980 deeds.
Some further facts may be appropriate. Josie Klitzing is the mother of Mary Didier, formerly Mary Crouse. Mary Didier is the mother of Stephen Crouse. In 1956 Josie Klitzing and Mary Didier acquired 1,480 acres of land in Box Butte County. On December 6, 1968, Josie Klitzing and Mary Didier executed an agreement providing that Mary Didier would deed her one-half interest in all but 320 acres of land to Josie Klitzing, and in return Josie Klitzing would deed to Mary Didier Josie's one-half interest in the 320 acres and cancel certain debts of Mary's to Josie. Deeds were executed and recorded pursuant to the agreement, but the memorandum of agreement was not recorded.
On May 6, 1974, Josie Klitzing purchased the 320 acres of land owned by Mary Didier from Mary and her husband, John. Josie Klitzing executed a note and mortgage for $22,720 to Mary Didier as a part of the purchase price. The deed from the Didiers and the mortgage were recorded in May 1974. The note and mortgage are the note and mortgage involved in Mary Didier's claim against Josie Klitzing. Various payments were made by Josie Klitzing to Mary Didier over the years and the principal balance as of the time of trial was $5,680, plus interest from May 1, 1980, at the rate of 6 percent per annum.
On January 22, 1980, Josie Klitzing entered into a contract to sell the entire 1,480 acres of land to Stephen Crouse for the sum of $148,000, with payments to be made periodically over a term of years. When Stephen's attorney examined the abstract he discovered that in 1975 Mary Didier had recorded an agreement of April 1968 between Mary Didier and Josie Klitzing which had been superseded by the December 1968 agreement. Stephen's attorney advised him to obtain a quitclaim deed from Mary Didier of any interest she might have in the property. On August 15, 1980, Mary Didier agreed to relinquish all interest in the 1,480 acres to Stephen for $60,000, with $10,000 to be paid down and the balance in yearly installments. At the time of trial $19,000 had been paid. On the same date, Mary Didier executed a quitclaim deed to Stephen to be held in escrow until Stephen's land contract with Josie Klitzing was completed. Although Josie Klitzing knew of Stephen's agreement to pay Mary Didier $60,000 for a quitclaim deed and although she insisted that Mary had no interest in the land, Josie proceeded with her contract with Stephen and on November 20, 1980, conveyed the 1,480 acres of land by warranty deed to Stephen for $148,000, payable in periodic payments.
The present proceedings were commenced in July 1981. The case was tried to the court and during the trial the Didiers filed a motion to dismiss Josie Klitzing's cause of action for fraud and conspiracy to commit fraud on the ground that all necessary parties were not joined. That motion was overruled.
On July 6, 1982, the District Court found that Josie Klitzing was indebted to Mary Didier on the promissory note in the sum of $5,680 with interest thereon at the rate of 6 percent per annum...
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