Maloy v. Muir

Decision Date05 June 1901
Docket Number9,751
Citation86 N.W. 916,62 Neb. 80
PartiesTHOMAS MALOY v. DANIEL H. MUIR ET AL
CourtNebraska Supreme Court

ERROR from the district court for Lancaster county. Tried below before HOLMES, J. Affirmed.

AFFIRMED.

Halleck F. Rose, for plaintiff in error.

Frank Irvine and John P. Maule, contra.

Argued orally by Frank Irvine, for defendants.

OLDHAM C. POUND and SEDGWICK, CC., concur.

OPINION

OLDHAM, C.

This was a suit to recover back money paid in part performance of a land contract. The facts are that on the first day of September, 1890, Thomas Maloy, herein styled the plaintiff entered into a contract with Daniel H. Muir and Abraham L Hoover, herein styled the defendants, for the purchase of two lots in Arlington Heights, an addition to the city of Lincoln, Nebraska, for the sum of $ 500. The contract entered into provided for payments to be made in sums of $ 125 each the last one of which was due on the first day of September, 1893. The contract contained a provision that in case of the failure of the plaintiff to make either of the payments or perform any of the covenants on his part, the contract should, at the option of the defendants, be forfeited and determined and that the plaintiff should forfeit all payments made by him on the contract and that all such payments so made should be retained by the defendants in full liquidation of damages sustained by them and that they should have the right to re-enter and take possession of the premises. The plaintiff made payments on this contract in the sum of $ 290, the last payment having been made on the first day of January, 1892. He then made default in his payments and has never tendered any further payments since the time of his default. It appears from the pleadings and evidence introduced below that at the time this contract was entered into by the defendants there was a mortgage for a large sum of money on the entire Arlington Heights addition in which these two lots were situated; that this mortgage had been executed to one Charles E. Perkins by the defendants as a part of the purchase price of the land on which this addition was laid out; it also appears that the defendants had an agreement with said Perkins that upon the payment of $ 100 to him he, Perkins, would release any lot in the addition from the lien of the mortgage. It also appears that on the 29th day of June, 1895, the defendants conveyed their interest in the entire addition to Charles E. Perkins in payment of the remainder then due on the mortgage, and that this conveyance included the two lots in dispute. It also appears from the testimony and findings of the court below that Charles E. Perkins agreed, as a part of the purchase price of this conveyance, that he would fulfill all contracts which defendants had made for the sales of lots in this addition; it also appears from the testimony and findings of fact of the lower court that plaintiff Maloy was informed of this arrangement by the defendant Hoover before the bringing of this suit. At the trial below defendants had procured a warranty deed from Charles E. Perkins for the lots in dispute and tendered this deed to plaintiff in open court on condition that he, plaintiff, would pay the balance of the purchase money. Under these issues the court found for the defendant and dismissed plaintiff's petition and further decreed that the defendant might deposit the deed to plaintiff with the clerk of the court and that the plaintiff might pay into court the amount due upon the...

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