Ladman v. Ladman
| Decision Date | 08 May 1936 |
| Docket Number | 29668 |
| Citation | 267 N.W. 188,130 Neb. 913 |
| Parties | JOSEPH LADMAN ET AL., APPELLEES, v. EMIL LADMAN ET AL., APPELLANTS: JAN LADMAN ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Fillmore county: ROBERT M PROUDFIT, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. A contract between a husband and wife, where a legal separation is justified, in which they settle their property rights and each relinquishes all rights including inheritance in the property of the other, will be enforced if fair and equitable.
2. An examination of the record reveals that the evidence does not establish a separation contract.
3. Delivery is essential to the validity and operation of a deed.
4. No particular ceremony is necessary to constitute a delivery of a deed. Any words or acts showing intention of grantor to deliver and grantee to accept are sufficient.
5. Possession of a deed by grantee is prima facie evidence of delivery, which may be rebutted, but the burden of proof is upon him who denies this presumption.
6. Where grantor gives deed to third person to hold until the happening of some contingency, it does not operate as a delivery.
7. Under pleadings and facts in this case, the suit for partition was not prematurely commenced.
Appeal from District Court, Fillmore County; Proudfit, Judge.
Action by Joseph Ladman and wife against Emil Ladman and another, impleaded with Jan Ladman and others. Judgment for plaintiffs, and defendant Emil Ladman and another appeal.
Affirmed.
Guy A. Hamilton and Edward J. Steinacher, for appellants.
Waring & Waring and Sloans, Keenan & Corbitt, contra.
Heard before GOSS, C. J., GOOD, EBERLY, DAY, PAINE and CARTER, JJ., and YEAGER, District Judge.
The district court decreed the partition of certain real estate in a suit in which the five children and the surviving spouse of Barbara Ladman were parties. The real estate was formerly owned by Barbara Ladman. Two daughters and one son opposed the partition of the property decreed by the trial court and prosecute this appeal.
The petition of the plaintiff, a son, alleges that Barbara Ladman died intestate, and that the five children and the surviving husband are the heirs at law, and as such the owners of the property. The defendants opposed to the partition on this basis are two daughters and one son. They allege that Barbara Ladman executed a will. This question has been heretofore settled adversely to the appellants by this court. Barbara Ladman died intestate. In re Estate of Ladman, 128 Neb. 483, 259 N.W. 50.
The appellants also allege that by virtue of a separation agreement John Ladman, the surviving spouse, and the son Joseph, who is plaintiff here, had been barred and estopped from claiming any right, title and interest in the real estate. The separation agreement relied upon was between John Ladman and Barbara Ladman, his wife, and is alleged to have been made in 1895. An examination of the evidence reveals that it does not establish that the agreement was made. No such agreement was ever executed, and, if it was made, it was oral. The plaintiff here was alleged to have been a party to the separation agreement between his mother and father, and as a result to have been deeded some land. A contract between a husband and wife, where a legal separation is justified, in which they settle their property rights and each relinquishes all rights including inheritance in the property of the other, will be enforced if fair and equitable. In re Estate of Lauderback, 106 Neb. 461, 184 N.W. 128; Hiett v. Hiett, 74 Neb. 96, 103 N.W. 1051; Amspoker v. Amspoker, 99 Neb. 122, 155 N.W. 602. Since the evidence fails to establish that such an agreement was made between the parties or the terms thereof, it is unnecessary to speculate about the effect of such an agreement upon the issues in this case.
The amended answer of the appellants here alleged that on December 1, 1932, Barbara Ladman executed a warranty deed conveying the real estate to her five children. The plaintiff denies the execution and delivery of such a deed. It is necessary to determine the validity and effect of this deed. The appellants ground their argument upon a statement in the opinion filed in In re Estate of Ladman, 128 Neb. 483, 259 N.W. 50. The issue in that case was the revocation of a will. It was said by way of argument that Barbara Ladman's intention to revoke her will was evidenced by the fact that she had made another disposition of her property. As already indicated in Ladman v. Farmers & Merchants Bank, 130 Neb. 460, 265 N.W. 252, it would have been more accurate to state that her intention was shown by an attempt to make another disposition of her property. Persistence of counsel seems to require that we again take note of this language, although it was neither vital to the decision in which it was used, nor binding as an adjudication of any issue here. The argument of appellants that it adjudicates the question of fact relative to the conveyance by deed of the real estate here involved is unsound and untenable.
The original pleadings of two of the three appellants alleged that Barbara Ladman died seised of this property. The claim that the property had been conveyed to the five children was made for the first time in an amended answer filed after the opinion in In re Estate of Ladman, 128 Neb. 483, 259 N.W. 50, had been filed. The deed was executed and delivered to Charles Smrha, which conveyed this real estate to her five children, reserving a life interest. This deed was executed in connection with a proposed plan for the disposition of her property. The deed was given to Mr. Smrha for the purpose of making the disposition. But it never was delivered to the grantees. It is an old, established rule in this state that: Roberts v. Swearingen, 8 Neb. 363, 1 N.W. 305. Delivery is essential to the validity and operation of a deed. Roepke v. Nutzmann, 95 Neb. 589, 146 N.W. 939; Brown v. Westerfield, 47 Neb. 399, 66 N.W. 439. No particular ceremony is necessary to constitute a delivery of a deed. Any words or acts showing intention...
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Ladman v. Ladman
...130 Neb. 913267 N.W. 188LADMAN ET AL.v.LADMAN ET AL.No. 29668.Supreme Court of Nebraska.May 8, Syllabus by the Court. 1. A contract between a husband and wife, where a legal separation is justified, in which they settle their property rights and each relinquishes all rights including inheri......