Melick v. Varney
| Decision Date | 06 June 1894 |
| Docket Number | 4935 |
| Citation | 59 N.W. 521,41 Neb. 105 |
| Parties | SAMUEL M. MELICK v. HANNAH J. VARNEY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before FIELD, J.
AFFIRMED.
G. M Lambertson and H. J. Whitmore, for plaintiff in error.
C. M Parker and John P. Maule, contra.
This action of replevin originated in the district court of Lancaster county, and was brought by the defendant in error against the plaintiff in error for the possession of certain horses, wagons, cattle, and farming implements. The right of possession upon which the above claim was resisted was, that plaintiff in error held his possession under and by virtue of a levy thereon made by plaintiff in error, as sheriff, of a certain execution issued on a judgment in favor of J. Fred Hutchins and James D. Parker against Leroy S. Varney and John P. Varney. Hannah J. Varney, the defendant in error, is the wife of John P. Varney, and the mother of Leroy S. Varney. The property replevied had formerly been owned by John P Varney, by whom, on February 25, 1889, it had been conveyed by bill of sale to Hannah J. Varney. This bill of sale was filed for record in the office of the county clerk of Lancaster county on June 20, 1889. It was agreed on the trial, in open court, that on April 8, 1888, John P. Varney and Leroy S. Varney executed their promissory note for $ 300, with ten per cent per annum interest; that said note was not paid when due, and that suit was brought in the county court of Lancaster county on May 8, 1889, and judgment rendered June 20, 1889, for $ 336.60, with costs $ 36.30. In connection with and immediately following the above stipulation there was introduced in evidence the execution under which levy was made, indorsed with the return of the plaintiff in error, evidencing the fact of such levy. It is clear from the testimony that at the time the note above executed was given, the property replevied was owned by John P. Varney, and continued to be his property until the execution of the aforesaid bill of sale. There was no evidence indicating any change in the management or control of the chattels described in the bill of sale after its execution. There was evidence, too, that just before the execution of the note, upon which judgment was rendered against John P. Varney, he stated to the parties contemplating taking the note, and who were afterwards therein named as payees, that he was the owner of the property which was after replevied, and that he was taken as one of the makers of said note in payment for the property sold. The defendant in error had no knowledge of these representations, however, so far as the evidence shows. Plaintiff in error examined John P. Varney as his own witness, from whose undisputed testimony it appears that the note, on which judgment was afterward rendered, was signed by John P. Varney as surety for his son, Leroy S. Varney, at least to the value of a team which was part of the consideration. What proportion of the note referred to was for the team sold Leroy S. Varney was not disclosed in evidence.
It was claimed by the defendant in error that in Cedar county, Iowa her father and mother conveyed to her and her husband forty acres of land in June, 1871, which land in March, 1873, was sold for $ 1,400, of which defendant in error received $ 1,000, which she loaned to her husband. There were introduced in evidence deeds showing transfers as above recited. While the deed first above referred to was made to Hannah J. Varney and John P. Varney jointly, there was ample unquestioned evidence that the land was intended as a gift by the father of defendant in error to her. For the money intrusted to John P. Varney by his wife no evidence of indebtedness was given or asked, neither was any interest paid or required to be paid. To rebut these claims of the defendant in error no evidence was introduced, the sole reliance of plaintiff in error was on the inherent improbability of the evidence introduced as to their existence and history. These questions of fact were submitted to the jury for determination; the verdict, sustained by amply sufficient evidence, was in favor of the defendant in error. In the course of the trial there was introduced in evidence a scrap of paper on which was a written assurance by the father of defendant in error of what he proposed as to making a conveyance to her of the land which afterward formed the subject-matter of the deed which he executed. Possibly, if it was sought to enforce a specific performance of the undertaking of which assurance of performance was given, the terms thereof would have been too indefinite, but, as indicating an intention afterward executed, though not in exact accordance with the terms of such writing, it was competent. The court properly permitted this...
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