Meyer v. Meyer

• Decision Date: 03 June 1966
• Docket Number: No. 36231,36231
• Citation: 180 Neb. 379,142 N.W.2d 922
• Parties: Helene MEYER, Special Administratrix for Harvey Meyer, Deceased et al., Appellees, v. Bernard D. MEYER et al., Appellants.
• Court: Nebraska Supreme Court

Page 922

142 N.W.2d 922

180 Neb. 379

Helene MEYER, Special Administratrix for Harvey Meyer, Deceased et al., Appellees, v. Bernard D. MEYER et al., Appellants.

No. 36231.

Supreme Court of Nebraska.

June 3, 1966.

Syllabus by the Court

1. In an action brought for specific performance of an alleged oral contract to convey land, the proof as to the alleged oral contract must meet the exacting test as to the quality of being clear, satisfactory, and unequivocal.

2. Acts of part performance necessary to enforce an oral contract to convey land must not only relate to the contract but must further constitute part performance of it to the extent that its nonfulfillment would amount to a fraud on the party who has partly performed.

3. A special administrator has the power to initiate litigation to preserve the assets of the estate, and his authority in maintaining litigation is a continuing one until the appointment and substitution of a general administrator or executor.

4. Actions in equity on appeal to this court are triable de novo, subject, however, to the rule that when evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite.

5. A court of equity having obtained jurisdiction of a cause will retain it for all purposes, and render such a judgment as will protect the rights of the parties before it.

Richard L. Kuhlman, Ray C. Simmons, Fremont, for appellants.

Lyle B. Gill, Fremont, for appellees.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ., and RONIN, District Judge.

RONIN, District Judge.

This is an action in equity wherein plaintiffs seek specific performance of an alleged oral contract for the conveyance of the 160-acre home farm of the parties. This is a family controversy arising immediately after the accidental death of the only son of the Meyer family on January 15, 1963.

The facts essential to an understanding and disposition of the issues of this case are these: The defendants Bernard D. Meyer and Anna Meyer are husband and wife and the parents of five children, four of whom were daughters and constitute the remaining four defendants herein. All daughters were married and had left the home farm prior to the marriage of their brother, Harvey, who was the only son of Bernard and Anna. Bernard had owned and operated a 300-acre farm in Dodge County, Nebraska. Until his marriage at age 23 Harvey lived at home and farmed for his father without wages other than his keep and spending money. Harvey married Helene on January 20, 1938, and they lived on the home farm of 160 acres and farmed another adjoining 40-acre tract. Bernard and Anna moved at that time to the improvements on the remaining 100-acre tract. There was a close relationship between father and son and the father considered his son a good farmer. Harvey and Helene lived on the home place continuously for 25 years until the unfortunate accidental death of Harvey on January 15, 1963. Plaintiffs Lowell Meyer, Layne Meyer, and Lowene Meyer Uehling are the children of Harvey and Helene who survived him. Helene Meyer is also named plaintiff as an individual as well as in her capacity as special administrator of the estate of Harvey Meyer, deceased.

Plaintiffs allege in their petition that at the time of his death, Harvey had an oral contract with defendants Bernard D. Meyer and Anna Meyer, by the terms of which the said defendants were required to convey their interest in the home farm of 160 acres together with an adjoining strip of land comprising the windbreak for the farm house. In consideration of said promise of his parents, Harvey agreed to continue to live on and to farm the land and further agreed to pay said defendants $17,600, which time of payment had been determined prior to Harvey's death to be March 1, 1963.

The trial court in its judgment entered after trial canceled the deed from Bernard and Anna to the four Meyer daughters and ordered specific performance of the oral contract by the defendants Bernard and Anna as to the 160-acre farm, but not including the adjoining windbreak tract. The conveyance was conditioned upon payment of the plaintiffs of the sum of $17,600 to the clerk of the district court for the said defendants. A showing was made that payment of this sum was made by plaintiffs. The motion for new trial filed by defendants was overruled by the court and the defendants thereafter perfected their appeal to this court.

In an action brought for specific performance of an alleged oral contract to convey land, the proof as to the alleged oral contract must meet the exacting test as to the quality of being clear, satisfactory, and unequivocal. Lunkwitz v. Guffey, 150 Neb. 247, 34 N.W.2d 256; Overlander v. Ware, 102 Neb. 216, 166 N.W. 611. The principal issue in this lawsuit is whether the provisions of the oral contract in the instant case comply with the strict burden of proof required. We hold that it does.

A more detailed narration of the facts here is necessary for an understanding of the determination of this controversy. The record discloses that Harvey Meyer exercised complete control over the home place, being the southeast quarter of Section 22, Township 20 North, Range 7 East of the 6th P.M., Dodge County, Nebraska, from the time he assumed full possession in 1938 to the time of his death. In 1943 he built a large machine shed and later a dairy barn. He put in corn cribs with concrete bases and made general repairs to the house, buildings, and fences. He hired and paid contractors to do work, and used repairs as a deduction on his federal income tax returns. In 1959 he had the land appraised for loan purposes. Exhibit 4 is an aerial photograph of the farm house with extensive and substantial improvements, most of which were constructed or substantially repaired by Harvey. The record shows that Bernard Meyer spent very little money on the place and gave Harvey a free hand in his farm operations.

Plaintiffs placed in evidence a 1943 check in the sum of $4,000 from Harvey to Bernard which they state was in full payment of all personal property and farm equipment of Bernard that Harvey purchased from his father in 1938.

These investments and operations of Harvey on the home farm were with the approval of his parents and support the contentions of the plaintiffs of an agreement that Harvey was eventually to have the home farm, rather than that of the usual landlord-tenant relationship which the defendants assert herein. In 1940 Harvey and Bernard entered into a formal written 1-year lease. In this regard plaintiffs' evidence is that by the provisions of the oral contract Harvey was to continue paying his parents on a rental basis until his father requested payment of the agreed sale price of $17,600, which sum represented the 160-acre home farm at $110 per acre. The lease entered into by and between the parties is not inconsistent with the alleged oral agreement of the parties to sell the premises.

Subsequent actions of the defendants after Harvey's death denote a complete change in their plans for future ownership of the home farm. On March 1, 1963, a written 1-year lease was prepared by Bernard Meyer which Helene Meyer executed at his request. On July 8, 1963, Bernard and Anna executed a deed to their entire 300-acre farm, which included the home farm, to their four daughters. Plaintiffs were not informed of this conveyance until they saw the account of it in the newspaper and after they had received a notice to quit...