Kruger v. Adams & French Harvester Co.

• Decision Date: 31 December 1880
• Citation: 9 Neb. 526,4 N.W. 252
• Parties: JULIUS KRUGER, PLAINTIFF IN ERROR, v. THE ADAMS & FRENCH HARVESTER COMPANY AND ANOTHER, DEFENDANTS IN ERROR.
• Court: Nebraska Supreme Court

9 Neb. 526

4 N.W. 252

JULIUS KRUGER, PLAINTIFF IN ERROR,

v.THE ADAMS & FRENCH HARVESTER COMPANY AND ANOTHER, DEFENDANTS IN ERROR.

Supreme Court of Nebraska.

Filed ____________1880.

Error to the district court of Platte county. Tried below before Post, J. The opinion states the case.Millet & Son, for plaintiff in error.

Whitmoyer, Gerrard & Post, for defendants in error.

COBB, J.

The plaintiff in error brought suit against the defendant in error, the Adams & French Harvester Company, (and Benjamin Spielman,) and obtained a temporary injunction against them, and finally at the trial obtained a judgment making such injunction perpetual. The petition set forth the following facts: That on the eighth day of November, 1872, certain lands, to-wit, the south-west quarter of section 20, in township 20 north, of range 1 west, in Platte county, Nebraska, were a part of the public domain of the United States and subject to entry as a homestead under the act of congress approved May 20, 1862, entitled “An act to secure homesteads to actual settlers in the public domain;” that one Henry Wells, on or about said date, entered said lands as a government homestead under said act of congress; that said Henry Wells, from the date of said entry, resided and continued to reside upon, improve, and cultivate said lands as such homestead until on or about the eighth day of February, 1877, when he duly proved up thereon and duly consummated his title thereto under and pursuant to said homestead law, and his entry thereof made as aforesaid, after making his proofs of settlement, cultivation, etc., of said tract of land, so as to entitle the said Henry Wells to the final receiver's receipt for said lands under said entry; that thereupon the usual duplicate final receipt for said lands under such entry, bearing date on or about said eighth day of February,1877, was duly issued to said Wells by the receiver of the United States land office; that the United States, on or about the first day of May, 1877, duly conveyed by its letters patent, bearing date on that day, all the aforesaid lands in fee simple to said Henry Wells upon his said homestead entry; that the said Henry Wells continued to be the owner in fee simple of said lands from the date of said patent until on or about the twenty-third day of August, 1877, when the said Henry Wells and his wife, Esther L. Wells, duly conveyed the said lands in fee simple, by warranty deed of that date, to the plaintiff, and that the said plaintiff hath ever since been and now is the owner of said lands; that said Henry Wells on the twentieth day of July, 1875, at Columbus, Neb., duly made his two promissory notes of that date to the Adams & French Harvester Company, and thereby in and by each of said notes, for value received, promised to them the sum of $100, with interest at 12 per cent. per annum; that all and each of said notes were then and there given for a debt contracted at that date for an Adams & French harvester machine, which was the sole and only consideration given by said Adams & French Harvester Company to said Henry Wells for said notes or either of them; that said Adams & French Harvester Company thereby became and continued from said time to be the owners and holders thereof, until on or about the twentieth day of May, 1877, when said Adams & French Harvester Company commenced an action on said notes against the said Henry Wells in the county court for Platte county, Nebraska; that such proceedings were thereupon had in said county court in said action; that said Adams & French Harvester Company recovered a judgment on said notes, against said Henry Wells, in said court, at the June term thereof for the year 1877, on the eleventh day of June, 1877, for the sum of $266.20; that the sole and only consideration of said judgment was and is the face of said notes and interest then due; that the said Adams & French Harvester Company, on the sixth day of July, 1877, procured from said county court a duly certified transcript of the said judgment, and caused the same to be duly filed in the office of the clerk of the district court for said Platte county, and docketed the same in the execution docket therein; that the said Adams & French Harvester Company, on or about the thirty-first day of August, 1877, caused execution to issue on the said judgment and transcript in their favor against the said Henry Wells, out of the district court for said county, under the seal thereof, directed to the defendant Benjamin Spielman, as sheriff of said county; that said Spielman was then and now is such sheriff of said county, duly elected and qualified and acting as such sheriff; that said Spielman, as such sheriff, with the other defendant, the Adams & French Harvester Company, thereupon proceeded to levy said execution to satisfy the aforesaid judgment upon the aforesaid lands of the plaintiff under the direction and authority of the said Adams & French Harvester Company, caused the same to be valued and appraised under said levy, and such appraisement or a copy filed in the county clerk's office of said county; that said sheriff, under the directions of said Adams & French Harvester Company, threatens to and will sell said lands so levied upon by him under said execution unless restrained and enjoined by the order of this court; that said sheriff has advertised said lands for sale, etc.; that such sale would cast and constitute a cloud upon the plaintiffs's title thereto, cause and produce the plaintiff great and irreparable injury, etc.

The defendant, the Adams & French Harvester Company, appeared by attorney and filed its answer in said cause, in and by which it admitted that it had recovered a judgment against W H. Wells (with others) at the time stated in the petition; that...