Mahoney v. Salsbury

• Citation: 120 N.W. 144,83 Neb. 488
• Decision Date: 20 February 1909
• Docket Number: 15,554
• Parties: JAMES P. MAHONEY ET AL., APPELLANTS, v. FRANK SALSBURY ET AL., APPELLEES
• Court: Nebraska Supreme Court

120 N.W. 144

83 Neb. 488

JAMES P. MAHONEY ET AL., APPELLANTS, v. FRANK SALSBURY ET AL., APPELLEES

No. 15,554

Supreme Court of Nebraska

February 20, 1909

APPEAL from the district court for Butler county: ARTHUR J. EVANS JUDGE. Reversed with directions.

Reversed and remanded, with directions.

L. C Burr and T. J. Doyle, for appellants.

Aldrich & Fuller, contra.

OPINION

BARNES, J.

Plaintiffs brought this action in the district court to quiet title to a tract of land situated in Butler county. Defendants Salsbury Lemon and Brown answered, setting up certain proceedings and judgments in attachment, in which they were plaintiffs and the defendant Joseph Wells was the defendant, by which they alleged that they had obtained liens upon the land in question which were prior and superior to the rights of the plaintiffs. Defendant Wells answered, claiming to be the owner of the premises, and alleged that he had been induced by duress, coercion and fraud practiced upon him by the plaintiffs and others to convey the land in question to the plaintiff Doyle, and prayed that his conveyance be set aside and held for naught, and that the title to said land, as against the plaintiffs, be quieted in him. The district court rendered a decree in favor of the plaintiffs and against defendant Wells dismissing his cross-petition, and in favor of the defendants Salsbury, Lemon and Brown sustaining their attachment proceedings, and dismissing the plaintiffs' action as to them. From that part of the decree the plaintiffs have appealed. Wells prosecutes no cross-appeal, and therefore the bona fides of the sale and conveyance by him to the plaintiff Doyle is as between them not now an open question.

The testimony contained in the bill of exceptions we think fairly establishes the following facts: That on and prior to April 15, 1905, the defendant Joseph Wells was the owner of the northeast quarter of section 19, in township 13, range 2 east of the sixth P. M., in Butler county, Nebraska, together with certain other land; that he resided at that time in Denver, Colorado, and prior to that date had corresponded to some extent with plaintiffs about a sale of his land to the plaintiff Mahoney; that Doyle, acting in the capacity of agent for Mahoney, accompanied by one L. C. Burr, went to Denver to see Wells about the matter, and on the date last above mentioned purchased the land from Wells, paying him therefor $ 4,550 in cash, and assuming mortgages, interest and taxes, which were liens on the land, amounting to $ 6,250; that Wells thereupon executed and delivered to Doyle a warranty deed to said premises, complete in all respects, except the name of the grantee, which was left in blank. It appears that it was understood by Wells that the name of the grantee was to be left in blank solely for the reason that Doyle was not certain that Mahoney would complete the purchase according to their previous agreement, and, having paid his own money for the land, it was deemed best, in case of delay on the part of Mahoney or of his failure to complete his proposed purchase, for Doyle to take title to the land himself. Doyle returned from Denver to Lincoln on the 16th day of April, 1905, bringing the deed in question with him. On Monday, April 17, he went to Greeley, Nebraska, to attend court, and instructed Mr. Burr, who was familiar with the transaction, to close the deal with Mahoney, if he was prepared to take the property and pay for it on that day, and insert his name in the deed, but, if for any reason Mahoney failed to complete his purchase at that time, to insert Doyle's name in the deed as grantee, and send it to Butler county for record. It further appears that Mahoney came to Lincoln on the 17th day of April, but was unable to complete his purchase at that time; that Burr on that date inserted Doyle's name in the deed as grantee, and the same was thereafter forwarded to the county clerk of Butler county for record, and was recorded on the 22d day of April following.

On the 20th day of April defendants, Salsbury, Lemon and Brown commenced attachment suits in the district court for Butler county against the defendant Joseph Wells, and on the day following said attachments were levied upon the 160 acres of land in question herein as the property of defendant Wells. The attachment suits were commenced on claims not then due, and the grounds therefor, as set forth in the affidavits, were that Wells was a nonresident of this state, and that he had sold, incumbered and disposed of his property with intent to defraud his creditors. Wells appeared by the plaintiff Doyle as his attorney, and moved to dissolve the attachments. In support of his motions, he set forth by affidavit the bona fides of the transaction by which he conveyed the land in question to the plaintiff Doyle on the preceding 15th day of April. The motions to dissolve were overruled, and no other or further appearance was made in the attachment suits. Judgments were rendered therein against the defendant Wells, and the attached property was ordered to be sold. On the 1st day of May, 1905, Mahoney procured the money necessary to purchase the land in question, and paid the same to Doyle, who thereupon conveyed it to him by a warranty deed. Thereafter the plaintiffs commenced this action to restrain the defendants Salsbury, Lemon and Brown from proceeding further in said attachment suits, from selling the land under the orders of attachment above mentioned, and to quiet their title to the same as against the defendants, said attachment creditors.

It further appears that at the time of the execution and delivery of the deed in question defendant Wells also executed and delivered to the plaintiff Doyle the following instrument in writing: "Roy Parks: For value received I have this day sold, assigned and set over to Thomas J. Doyle of Lincoln, Nebraska, all my right, title and interest, claim and demand in and to the lease under which you occupy the above named premises, and you not having paid me any rent due under said lease for the year 1905, or subsequent thereto, you will please pay the same and all thereof to him, and recognize him as your landlord, and any and all courtesies you may extend to him will be thoroughly appreciated by yours truly, Joseph Wells." On the 17th day of April, 1905, Doyle communicated to Parks, who was in possession of the land in controversy as a tenant, the fact of his purchase and the assignment of the lease to him, and from that time on was recognized by Parks as the owner of the premises.

It is contended that the deed executed by Wells to Doyle on the 15th day of April, 1905, with the name of the grantee in blank, was for that reason void and conveyed no title to Doyle; that, therefore, the land still belongs to Wells, and is subject to sale under the orders of attachment. This contention might be sustained if it were shown that Doyle had no authority to insert the name of the grantee in the deed but we are satisfied from the evidence that Doyle had such authority. Not only is that fact testified to by him and by Burr, but all the circumstances surrounding the transaction point unerringly to the fact that it could not then be determined with certainty whether Mahoney would complete the purchase according to his agreement,...