Newman v. Edwards

• Decision Date: 18 October 1887
• Citation: 34 N.W. 382,22 Neb. 248
• Parties: THOMAS NEWMAN, PLAINTIFF AND APPELLANT, v. MILTON EDWARDS, DEFENDANT AND APPELLEE
• Court: Nebraska Supreme Court

34 N.W. 382

22 Neb. 248

THOMAS NEWMAN, PLAINTIFF AND APPELLANT, v. MILTON EDWARDS, DEFENDANT AND APPELLEE

Supreme Court of Nebraska

October 18, 1887

APPEAL from the district court of Douglas county. Heard below before WAKELEY, J.

Reversed.

O'Brien & O'Brien and O. H. Ballou, for appellant.

George F. Brown, for appellee.

OPINION

MAXWELL CH. J.

The plaintiff in his petition alleges that on the 27th day of September, 1857, and ever since said date to the present time he was and still is the owner in fee simple of the south half of the south-west quarter of section three, and the north half of the north-west quarter of section ten, township fourteen, range eleven east, containing 160 acres of land, in Douglas county, Nebraska, and that he is now and has ever since the said date to the present time been in the quiet and peaceable possession thereof; that on or about the sixth day of February, 1873, the said plaintiff was indebted to defendant in the sum of about sixty dollars, and also was indebted to divers and sundry other persons in sums of money amounting in the aggregate to about the sum of $ 440; that said defendant, on or about said last mentioned date, agreed to loan to said plaintiff the said sum of $ 440 for the purpose of paying the same to his creditors, which, together with the said $ 60 then due defendant from plaintiff, would amount to the sum of $ 500; that in order to secure the payment of the said sum of money the plaintiff agreed to give to the defendant security on the said described land; that in pursuance of said agreement and for the said purpose of securing the payment of the said sum of money, plaintiff, on the said 6th day of February, 1873, made and executed a deed of said described real estate to said defendant, which deed was duly recorded in the office of the county clerk of Douglas county, Nebraska, on the 10th day of December, 1873.

That although said deed was an absolute conveyance in terms on its face, yet nevertheless the same was made by the said plaintiff to the said defendant as a mortgage only, and was intended as a security in the nature of a mortgage, which mortgage deed was not to be delivered to said defendant until said defendant should pay over to said plaintiff the said sum of $ 440 as he had agreed to loan him; that said defendant never paid over to said plaintiff the said sum of $ 440, nor any part thereof, though often requested so to do, and wholly disregarded his agreement in that behalf; that afterwards, on or about the day of 1875, the said plaintiff and said defendant had a settlement of all matters between them, and plaintiff gave other and ample security to defendant for his said indebtedness to him; that said security has been subjected to the payment of the said indebtedness, and that the said sum of $ 60, money for which a note had been given, has long since been paid to defendant.

That shortly after the time of the said settlement last made as above, between plaintiff and defendant, said defendant obtained possession of the said mortgage deed without the knowledge or consent of this plaintiff, and without paying any consideration therefor; that said defendant though often requested to release and discharge the said mortgage deed by proper instruments of release or conveyance, yet defendant has hitherto and still does neglect and refuse so to do, and that said mortgage deed is a cloud upon the title of this plaintiff.

Wherefore plaintiff prays judgment against the said defendant that he, the said defendant, do cancel and discharge the said mortgage deed by proper instrument of conveyance, and that the said cloud upon plaintiff's title to said land be removed, and for such other and further relief as justice and equity may require.

The defendant in his answer alleges that it is true, and he admits that the said petitioner did, on or about the 6th day of February, 1873, execute and deliver to this defendant a deed of the lands described in plaintiff's petition, which was duly recorded in the record of deeds of Douglas county, Nebraska, at the time stated in said petition; that at the time of making said deed the plaintiff was largely indebted to this defendant in a sum much larger than sixty dollars mentioned in said petition, and plaintiff desiring to pay the same, did of his own free act and accord make and deliver to defendant the deed aforesaid for the purposes of paying said indebtedness, and said plaintiff well knew the same to be an absolute deed of said lands, and so intended and understood by the parties thereto at the time of its execution; defendant denies that he ever agreed to loan to said plaintiff four hundred and forty dollars as stated in said petition, nor any other sum of money, and he denies that said deed was given as a mortgage to secure the repayment of any such loan and the sixty dollars aforesaid; denies that there was any design or intention that said deed should be regarded as security for an old debt and money to be loaned by this defendant to plaintiff, and defendant never heard of any such pretence or the loaning of $ 440 as part of the consideration of said deed until he saw it in plaintiff's petition herein; admits that he did not pay over to plaintiff the sum of $ 440 for the reason that he never agreed to do so, and was not requested by the plaintiff nor by any one for him to make any such payment; denies that he had at any time after the execution of said deed of Feb. 6th, 1873, a settlement with plaintiff of the indebtedness constituting the consideration of said deed, and took other security for said indebtedness as falsely stated in said petition; avers that he never had any such settlement with plaintiff, and he was never requested to have any, and defendant never promised to cancel or in any way annul said deed of Feb. 6th, 1873, and the plaintiff never called upon or requested defendant to enter satisfaction of said deed nor to execute any other instrument of writing releasing or annulling said deed of Feb. 6th, 1873, conveying said lands unconditionally and absolutely to defendant; denies that plaintiff has been the owner of said lands since 1857, and in peaceable possession of said lands from said last mentioned date up to the commencement of this action as falsely stated in plaintiff's petition; on the contrary defendant avers that immediately after the execution and delivery by the plaintiff of the deed of Feb. 6th, 1873, to defendant, this defendant took possession of said lands under said deed with the full knowledge and consent of plaintiff, and has been in the quiet and undisputed possession of said lands about twelve years immediately preceding the commencement of this action, and defendant submits that the plaintiff ought not further to have or maintain his action against this defendant.

Defendant denies each and every allegation in the said petition contained not hereinbefore admitted or denied, and having fully answered prays hence to be discharged with his costs.

The reply is a general denial.

On the trial of the cause the court found for the defendant, and dismissed the action.

The points of decision as stated in the record are as follows:

"1. The theory and grounds of plaintiff's action are, that the deed in question was never delivered to the defendant, but was surreptitiously taken by him from plaintiff's possession and control. The clear preponderance of evidence is against this proposition, and satisfactorily establishes that there was a nominal delivery of the deed to defendant after it had been recorded and returned to plaintiff. This explanation of the reason for executing it and having it recorded is unsatisfactory, and was unsupported except by his own testimony, while it is especially contradicted by that of the defendant.

"2. For the purposes of this action it is not material whether the deed was made and delivered with the intent to hinder creditors, or guard against the possible results of the pending suit against Newman, or as a gift or compensation to Edwards. In either case it was a valid transfer as between the parties, voluntarily made, and a court will not compel a reconveyance. But the most reasonable explanation of the transaction is, that the deed was made and recorded by Newman in view of the litigation in which he was involved, without the knowledge of Edwards, and that it was finally delivered to him in the presence of his brother, who could be called as a witness to the occurrence, with the statement that it was in consideration of an indebtedness to Edwards. This is testified to positively by the witnesses, although denied by Newman; he virtually admits that after Edwards obtained the deed, he acquiesced in Edwards' suggestion that the deed be held by him as a safeguard on account of the pending suit. If the deed was executed, or allowed to remain in Edwards' possession with the intent of hindering or delaying creditors, a court, of course, will not aid either party."

It will be observed that the ground of the plaintiff's claim, as stated in his petition, is, that he executed the deed in question to secure a note given by him to the defendant for the sum of $ 60.00, and the further sum of $ 440.00 to be thereafter loaned to him. The question of the delivery of the deed seems to be established by a preponderance of the testimony. The defendant in his answer admits the indebtedness to him of $ 60.00, but denies the agreement by him to advance the $ 440.00 to the plaintiff by way of loan, and denies that the deed in question was executed as a mortgage, but alleges that the plaintiff was indebted to him in a large amount and that the deed in question was executed in satisfaction of the debt. No question of gift, or that the deed was executed to hinder delay, or...