Nicholson v. Getchell
| Decision Date | 06 March 1925 |
| Docket Number | 23675 |
| Citation | 202 N.W. 618,113 Neb. 248 |
| Parties | WILLIAM S. NICHOLSON, APPELLEE, v. JOHN W. GETCHELL, JR., ADMINISTRATOR, ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Sioux county: WILLIAM H WESTOVER, JUDGE. Reversed.
REVERSED.
Samuel L. O'Brien, Fern S. Baker and Allen G. Fisher, for appellants.
Lee Basye, contra.
Heard before MORRISSEY, C. J., ROSE, DAY, THOMPSON and EVANS, JJ and SHEPHERD, District Judge.
This is an action to foreclose a mortgage made by John W. Getchell to William S. Nicholson to secure the payment of a note for $ 23,000 due September 1, 1923. During the pendency of the action in the district court the mortgagor defendant died. There was a decree of foreclosure, from which John W. Getchell, Jr., as administrator of John W. Getchell, deceased, and as part owner by grant and as heir of said decedent, prosecutes this appeal.
The facts out of which the action arose are as follows: On April 16, 1918, the plaintiff and appellee, with one Alvin W. Nicholson, entered into a contract with John W. Getchell, hereinafter called Getchell, Sr., for the sale and conveyance of a ranch located in Sioux county for an agreed consideration of $ 111,550, made up of existing incumbrances in a sum not to exceed $ 51,750, the payment of which the grantee assumed, a cash payment of $ 3,000, the additional payments in cash, the assignment of a note and mortgage and conveyance of other real estate. The contract as to the various conveyances and assignments, except as hereinafter noted, were carried out on the date of the note and mortgage in suit. In the conveyance of the ranch, section 17, covered by the contract, which, if excluded, severed the ranch into two parts, was omitted from the deed of conveyance, although included in the mortgage in suit given to secure the $ 23,000 note which was part of the consideration for the ranch. About the same date possession of the ranch was given to Getchell, Sr. Default was made in the payment of the interest installment due September 1, 1920, and the owner and holder thereof, the plaintiff, instituted the present action, and elected, under the conditions in the mortgage, to declare the whole debt secured due and payable. The petition to foreclose the mortgage was filed on January 26, 1922. A supplemental petition, alleging the death of the mortgagor on May 31, 1922, the appointment of John W. Getchell, Jr., as administrator of the estate of John W. Getchell, Sr. , deceased, on the 10th day of July, 1922, and that the decedent left surviving him as his sole and only heirs his children, John W. Getchell, Jr., Claudia W. Warner, and Maude Marshall, and that they were proper parties defendant, was filed on November 13, 1922. There is in the record no order showing the revivor of the action against John W. Getchell, Jr., as administrator of the estate of John W. Getchell, Sr., deceased, and the said heirs.
On December 5, 1922, John W. Getchell, Jr., and John W. Getchell, Jr., as administrator of the estate of John W. Getchell, deceased, filed his answer admitting that the administrator was appointed and qualified as such, and alleged that Getchell, Sr., had answered during his lifetime, and adopted such answer as the answer of the administrator. It also includes a general denial, and alleges that John W. Getchell is the father of the defendant John W. Getchell, Jr.; that it was understood by the plaintiff and Alvin W. Nicholson, the other vendor in said contract, that Getchell, Sr., and John W. Getchell, Jr., were partners in the contract of purchase; that Getchell, Sr., had performed all of the terms of the contract on their part to be done and performed; that an undivided one-third interest in said land has been conveyed to said John W. Getchell, Jr., the failure to convey section 17 and offered to reconvey the land to the plaintiff.
On the same day was filed an answer and cross-petition by John W. Getchell, Sr., the same having been sworn to on the 23d day of March, 1922, and presented by one J. E. Porter as his attorney. In it are denied all allegations of the petition "not specifically admitted or qualified." It alleges the making of the contract to sell and convey the ranch, incorporating the contract into the answer and cross-petition by attaching it as an exhibit and making it a part thereof. It alleges performance on the part of the vendee of the contract; that the mortgage in suit and the note were made to the plaintiff in his own behalf and as trustee for Alvin W. Nicholson, who is alleged to be a necessary party; the failure to convey section 17; that the ranch was purchased because it was a contiguous tract, and that the omission of section 17 resulted in a division of the ranch into two parts and greatly reduced its value; that it was purchased for the purpose of speculation and resale, and that while land values were high and when there was a large demand for such tracts of land, the defendant was prevented, by reason of such division of the ranch occasioned by the failure to convey section 17, from making a sale thereof; that since said time said lands have very much depreciated in value, the loss and depreciation being about $ 35,000, which the defendants ask to have set off against the amount due upon the mortgage, or, in the alternative, a rescission of the contract and a reconveyance, which is tendered.
On the 2d day of June, 1923, the plaintiff filed a reply to the answer of John W. Getchell, Jr., as administrator, and John W. Getchell, Jr., and his wife, and on the same day filed a reply "to the answer of the defendant John W. Getchell filed in the above-entitled action on the 5th of December, 1922." These replies admit the contract, admit the omission from the deed of section 17 but say it was a mistake of the scrivener; that as soon as attention was called to it a conveyance was made and all damages denied.
The case was tried on the 15th day of June, 1923, thirteen days after the filing of the replies. During the trial, while the evidence was being introduced on behalf of the defendants, it was testified to by Getchell, the administrator, also part owner of the property affected by the mortgage, that one Arnold, who was then at O'Neill, Nebraska, and was the prospective purchaser referred to, had been talked with over the telephone on the preceding Saturday; that he had promised to come upon telegram; that on Monday preceding the trial Getchell had sent Arnold a telegram to be there on the day of trial, June 15; that Arnold knew what had passed between the senior Getchell and himself with reference to the sale of the ranch in the fall of 1918; that witness had taken Arnold over the land, and he was pleased with it until he examined the records, and then he ceased to be interested; that as to such matters--the offer to buy and the effect of the record--Arnold would be the witness who would know. Arnold failed to come on the train as expected, and then the defendant made the following application: "The witness we have been expecting did not come, and in view of the present status of the case I will ask for time to take depositions." The court made the following ruling:
The evidence having been concluded, the case was submitted to the court, who thereupon entered a decree finding for the plaintiff as to the mortgage and debt, and entering a decree of foreclosure and sale, but making no finding or reference to the defence and counterclaim set up by the defendants. Defendants excepted to the rulings and findings of the court. The exceptions were overruled...
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