Lewis v. North
| Decision Date | 18 September 1901 |
| Citation | 62 Neb. 552,87 N.W. 312 |
| Parties | LEWIS v. NORTH. |
| Court | Nebraska Supreme Court |
1. It is not prejudicial error to submit to a jury, for its finding generally, questions of fact on purely equitable issues raised by the pleadings in the case.
2. A district court sitting as a court of equity may, in its discretion, submit to a jury any disputed question of fact.
3. In order to justify a decree of specific performance of a verbal agreement for the sale of real estate, the acts of part performance relied on to escape operation of the statute of frauds must be clearly, definitely, and satisfactorily shown, and it must also appear that such acts were done with reference to and in pursuance of the contract.
4. Continued possession by a tenant is not such a part performance of a verbal contract for the purchase of land as to take the case out of the statute of frauds. Possession, to have such an effect, must be clearly shown to refer to and result from the contract, and not the lease. Bigler v. Baker, 58 N. W. 1026, 40 Neb. 326, 24 L. R. A. 255.
5. The above rule held to apply when the alleged vendee was occupying the land as a former owner.
6. Evidence examined, and held to be insufficient to support the finding of the jury and the decree of the trial court rendered thereon.
Error to district court, Hall county; Thompson, Judge.
Action by Theodocia Lewis against Chauncy M. North. Judgment for defendant, and plaintiff brings error. Reversed.R. C. Glanville, for plaintiff in error.
W. H. Platt, for defendant in error.
A verdict was returned and judgment rendered in favor of the defendant. Plaintiff brings the case here on error. The plaintiff bases her right of action on three promissory notes executed by the defendant in her favor, and aggregating, with interest, at the time of the institution of the suit, about $2,000. In the answer the giving of the notes sued on is admitted, and for a defense it is alleged that they were executed as a part of the purchase price of certain lots purchased by the defendant of the plaintiff, situated in Colorado, and upon which there had been paid the sum of $1,800; that the defendant went to Colorado after the purchase of the property, and about the time the note first due matured, “and then and there had a settlement with the said plaintiff, in which the said plaintiff agreed, for and on consideration of the surrender of the said property and the forfeiture of the said $1,800 heretofore paid, that the said plaintiff would cancel the said notes sued on, and send them to the defendant, and that the defendant, upon the receipt of the said notes on his return to Nebraska, would redeed the said property to plaintiff, and thereupon and there and then surrendered the said property to the said plaintiff fully relying on the said agreement of settlement, and that the plaintiff took possession of the said property, and has retained it ever since; that this said contract of settlement was verbal, and consummated by the defendant's turning over the property to plaintiff; that this defendant has always been ready, and is now ready, to comply with his part of the said contract and agreement in every particular, and now prays,” etc. The reply denied specifically the alleged contract of settlement, the agreement to redeed the land and cancel the notes, and the delivery or taking possession of the real estate under the contract, and pleaded the statute of frauds as renderingvoid the alleged contract pleaded by the defendant in his answer. It is urged by the plaintiff that the answer does not state a defense to the cause of action pleaded in the petition; that the facts pleaded in the answer are insufficient to take the verbal agreement pleaded without the reach of the statute of frauds. Without taking the time to discuss or determine this question, we pass directly to that which appears to us as the controlling proposition, for which purpose we assume the answer presents a valid defense, and that is. Do the facts as disclosed by the record support the plea of the defendant to the effect that a contract or agreement was entered into for a reconveyance of the land in consideration of the cancellation of the notes then outstanding representing the deferred payments of the purchase price, and was there such a part performance under and in pursuance of the verbal agreement as to avoid the effect of the statute of frauds, and justify a court in decreeing specific performance of the contract? The defense interposed was purely equitable, and invoked the aid of a court of equity for the enforcement of the contract alleged in the answer when established by the evidence. The submission of the questions of fact raised by the issues to a jury for general verdict does not, we think, amount to prejudicial error calling for a reversal of the judgment on that account. In the trial of an equitable action any or all questions of fact may, in the discretion of the trial court, be submitted to a jury for their determination. Says the author of the opinion in Alter v. Bank, 53 Neb. 223, 230, 73 N. W. 667: “A chancellor was always invested with the discretion to submit to a jury issues of fact, and the Code has not deprived the courts, when sitting as courts of equity, of that discretion; and the district courts of the state, while sitting as courts of equity, are vested with the discretion to submit to a jury any disputed question of fact.” See, also, 11 Am. & Eng. Enc. Pl. & Prac. 607 et seq., under the title “Issues to the Jury in Equity Cases.” The question of prime importance in the case at bar is whether the evidence shows such part performance of the verbal contract pleaded as to escape the provisions of section 3 of the statute of frauds, which declares contracts for the sale of real estate, or any interest therein, except lease for one year or less, to be void unless in writing, and subscribed by the party to be charged thereby. It is indisputably shown by the evidence that the defendant purchased the real estate mentioned, paying therefor $1,800 in cash, and executing the notes in controversy for the remainder, and thereupon the property was conveyed to him by warranty deed. This transaction occurred in the spring of 1893. By the terms of the agreement for the sale of the property,--and it is so specified in the deed of conveyance,--the plaintiff was to give possession of the premises October 1, 1893. The first note matured October 1st. Prior to its maturity, and during the latter part of September, and while the plaintiff was yet in possession of the premises under the agreement made at the time of the purchase, the defendant left his home in Nebraska, and went to the plaintiff at her place of residence, for the purpose of paying, or making some arrangement for the payment of, the note then about to fall due. While on this trip the defendant testifies that the contract of settlement was entered into, and possession of the premises thereunder surrendered to the plaintiff. All the negotiations, both as to the purchase of the property and the alleged resale thereof to the grantor, appear to have been had with the husband of the plaintiff. While it is urged by counsel for plaintiff that the evidence is insufficient to support a finding of agency on the part of the husband, we are unable to so view the record, and hold to the opinion that the evidence is ample to show that the husband was duly authorized by the wife to act for her in the premises.
Regarding the contract for a resale of the property to the grantor in consideration of the cancellation of the notes outstanding, given as a part of the purchase price in the original transaction, the defendant is the only witness who testifies on the subject, and his testimony is as follows: ...
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