Nitz v. Widman
| Decision Date | 20 July 1921 |
| Docket Number | 21581 |
| Citation | 184 N.W. 172,106 Neb. 736 |
| Parties | JOSEPHINE NITZ ET AL., APPELLEES, v. WILLIAM WIDMAN, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Saunders county: GEORGE F CORCORAN, JUDGE. Affirmed.
AFFIRMED.
B. E Hendricks, for appellant.
J. H Barry, contra.
Heard before LETTON, ALDRICH, DAY and DEAN, JJ., SHEPHERD and STEWART, District Judges.
In this opinion Josephine Nitz and her five children will be referred to as plaintiffs, and William Widman as defendant.
From a decree of the district court for Saunders county, declaring plaintiffs the owners of a share in certain land in said county, occupied and claimed adversely by the defendant, and from an order for partition, the defendant appeals.
March 1, 1893, Joseph Widman and William Widman, father and son, purchased and took a deed to about 629 acres of land in Saunders county, for the expressed consideration of $ 23,730, and gave a $ 10,000 mortgage on the land and on 160 acres of land belonging to Joseph Widman. February 12, 1917, Joseph Widman died, leaving a will, which has been duly probated, devising, among other things, a life estate in a portion of said lands to Josephine Nitz, and then over to her children. On the date of testator's death Josephine Nitz was the mother of five living, unmarried, minor children. Josephine Nitz instituted this suit in partition on her own behalf, and as the next friend of said children. All shares of other devisees have been conveyed to the defendant.
By his cross-petition the defendant claims that about the year 1893 he had an agreement and a written contract for the purchase of his father's half interest in said lands, whereby it was provided that defendant was to have a deed after payment of incumbrances then existing, and the sum of $ 500 annually for ten years. Defendant alleges that said written contract was lost or destroyed, that he has fully performed its conditions, and asks to have his title quieted to the whole tract.
On this branch of the case, to entitle defendant to prevail, he must show by clear and satisfactory evidence that an agreement between him and his father was made, and that its conditions were fully performed by him. Kofka v. Rosicky, 41 Neb. 328, 59 N.W. 788; Peterson v. Bauer, 83 Neb. 405, 119 N.W. 764; O'Connor v. Waters, 88 Neb. 224, 129 N.W. 261; Moline v. Carlson, 92 Neb. 419, 138 N.W. 721.
Several witnesses testified, in substance, to having heard the testator say that defendant was to pay the incumbrances on the land and $ 500 annually for ten years, when he would get a deed; that defendant had fulfilled his contract and could have his deed if he would come and ask for it. Harry Widman, a brother of defendant, testified to being present when his mother stated in testator's presence that attorney Gilkeson had drawn the contract, and that defendant should have his deed; that the testator got mad and stuck the contract in the stove. For five years before the land was bought, the defendant, with one or the other of his brothers, farmed between 400 and 500 acres of land, starting with a team and wagon, the gift of his father. At the date of purchase, defendant testified he had in the bank between $ 6,000 and $ 7,000. He admits, on cross-examination, that 1894 and 1895 were poor crop years, and that prices on farm products in 1896 were low. He has had the use of the whole tract since the spring of 1893. He produces receipts showing taxes paid by him for 18 years, and 4 checks for $ 500 each and one for $ 250 from defendant to the testator, dated in 1907, 1908, 1910, 1913, and 1914, which were received in evidence. It appears that such payments had been continued for about 18 years. It is not shown who actually paid the notes or procured the release of the $ 10,000 mortgage, on maturity of final installment, March 1, 1896. Defendant has made lasting improvements, found by the trial court to be worth $ 18,000. Testator made a will about 1901, and three others since that time, in which he devised the undivided half of the land in question.
The record affords no light on defendant's failure to get a deed from his father. They lived at no great distance apart, and there is no suggestion of any estrangement between them, and no satisfactory explanation is given of the conduct of the testator in disposing by will of the lands claimed by the defendant. The provisions of the will gave the defendant about 120 acres of land, and half of the residue of the estate, which, as shown by the order of distribution, was about $ 2,200.
The will in question contained the following:
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