Melvin v. Hagadorn

• Decision Date: 29 June 1910
• Docket Number: 16,092
• Citation: 127 N.W. 139,87 Neb. 398
• Parties: CHARITY A. MELVIN, APPELLANT, v. A. G. HAGADORN, APPELLEE
• Court: Nebraska Supreme Court

127 N.W. 139

87 Neb. 398

CHARITY A. MELVIN, APPELLANT, v. A. G. HAGADORN, APPELLEE

No. 16,092

Supreme Court of Nebraska

June 29, 1910

APPEAL from the district court for Frontier county: RORERT C. ORR JUDGE. Affirmed.

AFFIRMED.

C. H Tanner and J. L. McPheely, for appellant.

Morlan Ritchie & Wolff, contra.

FAWCETT, J. ROOT, J., concurs in the conclusion.

OPINION

FAWCETT, J.

On August 18, 1906, plaintiff brought this suit in Frontier county to set aside a deed from one Barton and wife to defendant, and thereby remove what plaintiff alleged was a cloud upon her title to a quarter section of land in said county. On April 15, 1907, plaintiff filed an amended petition praying the same relief as in the first, and in addition thereto that the court reinstate two mortgages which she alleges had been released by her grantor under a mistake of facts, and for an accounting against defendant upon said mortgages. From a decree finding generally for the defendant and dismissing plaintiff's suit, she prosecutes this appeal.

The land in controversy is described as the south half of the northwest quarter, the northeast quarter of the northwest quarter, and the southwest quarter of the northeast quarter of section 3, township 7, range 28 west, in Frontier county. One Marion Pickenpaugh obtained the land from the United States government. The record is silent as to many of the transfers affecting the title thereto, subsequent to its entry by Mr. Pickenpaugh. From an abstract of title passed up to the court by counsel for plaintiff at the oral argument, and to which we therefore feel at liberty to refer, we find that Mr. Pickenpaugh executed two mortgages to one J. E. Seeley, one of the said mortgages being for $ 600, and the other for $ 90. Subsequently Seeley assigned the $ 600 mortgage to one William W. Smith. Later on, Seeley and his wife, Affa C. Seeley, conveyed the land by quitclaim deed to Abb Craig. This deed was made December 7, 1891. Six days prior to that date (December 1, 1891) Craig and his wife executed a mortgage to the said William W. Smith for $ 600, and on February 16, 1892, executed another to J. E. Seeley for $ 90. On the same day they executed to Seeley a quitclaim deed for the land. These two mortgages and the quitclaim deed were all acknowledged by Craig and wife on February 16, 1892. These transfers and dates tend strongly to corroborate the testimony of defendant given upon the trial, to the effect that Craig was only a dummy, taking title from Seeley and giving the mortgages and reconveying the title to him without consideration. The $ 90 mortgage executed by Pickenpaugh was released by Seeley May 1, 1891, and the $ 600 Pickenpaugh mortgage was released by Smith February 23, 1892. After obtaining the two mortgages and the quit-claim deed from Craig, Seeley and his wife, Affa, on June 4, 1892, conveyed the land by warranty deed to R. A. Barton, subject to the two Craig mortgages. On January 16, 1899, Barton and his wife conveyed the land by quitclaim deed to defendant Hagadorn, for a consideration of $ 50, which deed was not recorded by Mr. Hagadorn until November 23, 1905. October 1, 1902, William W. Smith assigned the $ 600 Craig mortgage to Affa C. Seeley, wife of J. E. Seeley. On November 30, 1902, R. A. Barton and wife by quitclaim deed attempted to convey the land to Affa C. Seeley, but, on account of an error in the description as to one eighty, a second quitclaim deed was executed by Barton and wife to Mrs. Seeley on April 28, 1904. In each of these two quitclaim deeds it is recited: "This deed is given to convey any interest we may have in said property at this time and no more." On October 13, 1905, Affa C. Seeley, "as executrix of the estate of J. E. Seeley, deceased," released of record the $ 90 Craig mortgage. On November 13, 1905, William W. Smith executed a release of the $ 600 Craig mortgage. No release of this mortgage was ever executed by Affa C. Seeley, who had obtained the same by transfer from Smith, as above shown, more than three years prior to the time Smith assumed to release it. November 28, 1905, Affa C. Seeley, widow, conveyed the property by warranty deed to plaintiff. This deed is a plain, ordinary, warranty deed, and makes no reference to any prior mortgages by assignment of the same or otherwise.

In her original petition, plaintiff alleges that at the time of the execution of the quitclaim deed from R. A. Barton to defendant, Barton, being unable to pay two certain mortgages securing the sum of $ 725, and certain accrued interest executed and placed in the hands of defendant the quitclaim deed with the name of the grantee in blank, and with instructions to defendant to deliver the deed to the holder of the said two mortgages upon a release of the same, no further consideration to be required; that defendant paid no consideration whatever for the said deed, and had no authority to deliver the deed except upon compliance with said instruction; that at the time of the delivery of the deed he was instructed to insert the name of the owner of said mortgages as grantee therein; "that subsequent to the execution of said deed so placed in the hands of defendant A. G. Hagadorn, and it being verbally agreed as aforesaid, the said R. A. Barton and wife, for a valuable consideration to them paid by two several conveyances in due form duly executed, acknowledged and delivered, conveyed all of said land to said Affa C. Seeley, being the same conveyances hereinbefore set forth, * * * and as a part of the said consideration for same the said two mortgages were released and canceled of record. At the time of the purchase of said described real estate by the plaintiff, the plaintiff had no notice of any kind or nature of the said deed in blank to said land so placed in the hands of defendant A. G. Hagadorn, and the said defendant receiving information of the purchase of said land by plaintiff, without any authority whatever, fraudulently inserted or caused to be inserted in said deed his name as grantee and without authority caused said deed to be recorded as hereinbefore set forth, he the said A. G. Hagadorn not having in any manner whatever complied with any of the agreements or instructions to him given, when said deed was executed and placed in his hands, and the grantors who executed said deed did not then own or have any interest of any kind or nature in said land. And plaintiff would further allege that he the said A. G. Hagadorn has never been in possession of said premises, either actual or constructive, but now sets up and claims title to said premises against the plaintiff, but refuses to commence an action at law...