Nelson v. Bevins
| Decision Date | 20 March 1883 |
| Citation | 15 N.W. 208,14 Neb. 153 |
| Parties | PETER NELSON, APPELLEE, v. ANDREW BEVINS AND ALICE BEVINS, APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Tried below before SAVAGE, J.
Reversed.
E Wakeley, for appellants.
1. Alleged agreement to give the mortgage was not in writing nor was any memorandum of it signed or made by either Andrew or Alice Bevins. It was therefore void by the statute of frauds, without reference to where the title was. Nor was there any fact or circumstance to take the agreement out of the statute. Payment of the money alone is not sufficient to authorize a court to decree specific performance of an agreement to convey or mortgage land. The statute and the authorities leave this in no doubt whatever. Sec. 3, ch. 25 p. 372, Rev. St. Sec. 25, Id., p. 395, Rev. St. Pp. 286-288, Comp. St. Frey on Spec. Perf., p. 154, et seq. Id., sec. 430, et seq. Browne on St. Frauds, sec. 461, et seq., and very numerous cases cited in both works.
2. The land was homestead of appellants and could not be mortgaged except by wife's consent and joining in the mortgage. Comp. Stat., sec. 4, p. 296.
3. Suit cannot be maintained as one to reform a written agreement, or written instrument. 1 Story Eq. Jur., sec. 152, 157.
4. Cancellation cannot be set aside and canceled mortgage restored. Leggenwell v. Fryer, 21 Wis. 392. Brete v. Vreeland, 2 McCarter, 103.
John D. Howe, for appellee.
Husband is shown by the evidence to have had abundant power to bind the property for the improvements, and to get credit on basis thereof, and expenditures being for wife's benefit are chargeable on the realty. Schouler Domestic Relations, 237. Rogers v. Ward, 8 Allen 387. McMurtry v. Brown, 6 Neb. 377. Fowler v. Seaman, 40 N.Y. 572.
This is an action for the specific execution of an agreement to execute a mortgage upon certain real estate, and for a decree foreclosing the same, and for general relief.
It is alleged in the petition in substance that on or about the 22d of September, 1879, Andrew Bevins purchased the premises in controversy, taking the title thereto in the name of Alice Bevins, his wife; that about the same time the defendants applied to the plaintiff for a loan of six hundred dollars for the purpose of erecting a house on the lot in question; that it was agreed that the defendants should have the sum required, out of a note which Bevins, as an attorney, held for collection, the defendants to secure the same by executing a mortgage on said premises, due in one year from November 10, 1879; that about the 10th of November, 1879, Bevins gave the plaintiff his note for the sum of $ 600, and agreed that the mortgage should be executed in a short time; that about the 24th of that month, the defendants did execute a mortgage for the sum of $ 350, reciting therein the payment of $ 250, and providing that it should not be foreclosed until two years from the maturity of the note, which mortgage was placed on record without being presented to the plaintiff; that on or about the 10th of January, 1880, the plaintiff discovered the character of the mortgage and refused to accept the same, and thereupon Bevins agreed to execute a new mortgage, due on the 10th day of November, 1880, and relying upon this agreement of Bevins, the plaintiff canceled the mortgage given by the defendant; and that the defendants thereafter refused to give a new mortgage.
The answer alleges in substance that Alice Bevins purchased and paid for said premises; that plaintiff loaned Andrew Bevins the sum named, and agreed to take his (Bevins') note therefor, due in one year, and credit him with fees due for legal services; that afterwards the parties settled, and it was agreed that $ 250 was a reasonable sum for the aforesaid services; that about November 10th, 1879, the plaintiff requested Bevins to give him a mortgage, due in one year which he refused, but promised to give him one due in three years if his wife would consent; that such mortgage was executed November 24th, 1879, and recorded in the plaintiff's absence; that in January, 1880, the plaintiff refused to accept said mortgage and canceled the same, taking Bevins' note for $ 350, due in one...
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