Northouse v. Torstenson

• Decision Date: 01 June 1945
• Docket Number: 31944.
• Parties: NORTHOUSE et al. v. TROSTENSON.
• Court: Nebraska Supreme Court

19 N.W.2d 34

146 Neb. 187

NORTHOUSE et al. v. TROSTENSON.

No. 31944.

Supreme Court of Nebraska

June 1, 1945

Syllabus by the Court.

1. When an affidavit for constructive service in a quiet title action contains no venue, and does not show whether the notary public was a resident of, or commissioned for, the county, such affidavit is fatally defective.

2. A merchantable title is a title which a man of reasonable prudence, familiar with the facts and the questions of law involved, would accept as a title which could be sold to a reasonable purchaser.

3. The term 'marketable title' is difficult of definition, but, accepting the prevailing rule that a good title is a marketable title, a 'clear title,' 'merchantable title,' or 'marketable title' generally means a title which consists of both the legal and equitable title, and is free from reasonable doubt in law or in fact; not merely a title valid in fact, but one which can be readily sold to a reasonably prudent purchaser, or mortgaged to a person of reasonable prudence as a security for the loan of money.

Moyer & Moyer, of Madison, and M. S. McDuffee, of Norfolk, for appellants.

Frederick M. Deutsch, of Norfolk, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.

PAINE Justice.

This is an action in equity to compel the specific performance of a contract for the sale of real estate. The trial court found for the defendant and dismissed the plaintiffs' petition from which the plaintiffs appealed.

The plaintiffs and appellants assign as errors that the judgment is not sustained by sufficient evidence and is contrary to law, for errors of law occurring at the trial and duly excepted to by the plaintiffs, and for the error in overruling plaintiffs' motion for a new trial.

The evidence discloses that David A. Ommerman, the grandfather of the plaintiff George Northouse, died seized of real and personal property of the value of $175,000, and that the 80-acre tract in litigation in the instant case was but a portion of the land bequeathed to the said plaintiff under a provision in the thirteenth paragraph of his will, reading, so far as affects this case, as follows:

'I hereby devise, give, and bequeath, unto my grandson, George Northouse, the use of the following real estate, for and during his natural life, to-wit: The West one-half (W 1/2) of the Northwest Quarter (NW 1/4) of Section Fourteen (14), * * * in Township Twenty-four (24) North, Range Two (2) West * * * Madison County, Nebraska, * * *, I hereby give and bequeath to the wife and children of the said George Northouse who may survive him, for and during the natural life of the wife of the said George Northouse should she survive him, share and share alike, and upon the death of the wife of the said George Northouse, the remainder in and to said real estate, I hereby give and bequeath, absolutely and forever to the children of the said George Northouse, share and share alike, who may survive him, provided however, that should the said George Northouse die leaving no wife him surviving, then in that event the remainder in said real estate described in this paragraph is vested absolutely and forever in the children of the said George Northouse and provided further that should the said George Northouse die leaving no wife or children him suriviving then in that event the remainder in and to said real estate to be vested absolutely and forever in Victor Northouse and Lynis Northouse, share and share alike.'

The evidence further discloses that the plaintiff George Northouse was born August 31, 1912 was 19 years of age when his grandfather died, was married September 7, 1940, and up to the time of trial he had never had any children by such marriage.

The plaintiffs and defendant entered into articles of agreement May 29, 1944, in which the defendant agreed to purchase from the plaintiffs the farm above described for the sum of $5,200, and that he paid down $2,000 in cash. The defendant further agreed to pay the balance of $3,200 'when the purchaser has approved the title which shall be within 60 days from this date.' The plaintiffs agreed 'to convey to the purchaser by good and sufficient warranty deed as clear fee simple title to said real property free from incumbrance. * * * In the event the seller cannot by June 30 1944, make title satisfactory to the purchaser the seller will return to the purchaser said $2000.00 with interest thereon at five per cent from this date and this contract shall thereupon be cancelled.'

The petition of plaintiffs alleges that they delivered an abstract of title showing a good and marketable title of record in George Northouse, and tender said abstract into court and pray that the defendant be required to accept said title and pay the balance due of $3,200.

The defendant in his answer and cross-petition says he is ready, able and willing to complete said contract. He recites that a quiet-title action was brought by said George Northouse claiming title to such land by adverse possession, and making no reference to the will of his grandfather or to any interest which an unborn child of his might have, if and when born. It is also charged by defendant in his brief that the affidavit for constructive service contains no venue, and does not otherwise show where it was sworn to, or whether the notary...