Oliver v. Lansing

• Decision Date: 05 January 1899
• Docket Number: 10050
• Citation: 77 N.W. 802,57 Neb. 352
• Parties: HENRY OLIVER, APPELLANT, v. JAMES F. LANSING ET AL., APPELLEES, AND WILLIAM OLIVER, APPELLANT
• Court: Nebraska Supreme Court

77 N.W. 802

57 Neb. 352

HENRY OLIVER, APPELLANT, v. JAMES F. LANSING ET AL., APPELLEES, AND WILLIAM OLIVER, APPELLANT

No. 10050

Supreme Court of Nebraska

January 5, 1899

APPEAL from the district court of Lancaster county. Heard below before HOLMES, J. Reversed in part.

Reversed in part and affirmed in part.

Joseph R. Webster and Halleck F. Rose, for appellants.

Lionel C. Burr and Roscoe Pound, contra.

OPINION

SULLIVAN, J.

The litigation between Lansing and Henry Oliver has vexed the courts for years. A serial history of it will be found in the cases of Oliver v. Lansing, 48 Neb. 338, 67 N.W 195, Oliver v. Lansing, 50 Neb. 828, 70 N.W. 369 and Oliver v. Lansing, 51 Neb. 818, 71 N.W. 735. This appeal is a proceeding in the suit for partition, and brings here for review the judgment of the district court confirming the referee's report on incumbrances, and directing distribution of the fund obtained from the sale of the real estate in controversy. The main question presented for decision grows out of the conflicting claims of the plaintiff's creditors to his share of the fund. His brother, William Oliver, claims it under a mortgage executed to him during the pendency of the action, while the defendant claims it by virtue of a judgment rendered in his favor by the district court of Lancaster county in a collateral suit between the original parties to this cause. To a proper understanding of the grounds upon which the rival claimants assert title it will be necessary to mention some of the steps previously taken in the progress of the case. In the answer filed to the plaintiff's demand for partition it was alleged that the plaintiff had acquired his interest in the property by purchase from the defendant and had not paid for the same. It was also charged that the plaintiff was indebted to the defendant in a large amount for expenditures made by him in improving the property. There was a prayer for an accounting and for a specific lien on the property for whatever sum should be adjudged in defendant's favor. A supplemental answer set forth that the defendant had recovered a judgment against the plaintiff in an action in the same court for the sum of $ 9,673.66, being purchase-money due for a part of the real estate in dispute. A reply was filed by the plaintiff, and, upon a trial of the issues joined, the court, on January 29, 1894, made the following finding:

"Sixth--The court further finds that defendant James F. Lansing, on the 26th day of June, 1893, recovered in this court a judgment against the plaintiff Henry Oliver for the sum of $ 9,673.66; that within twenty days thereafter plaintiff filed a supersedeas bond in said action in double the amount of said judgment, which was approved by the clerk, and said action is now pending on appeal in the supreme court; that said judgment is a lien upon plaintiff's interest and share in said real estate, but that by reason of such appeal and filing and approval of said bond is not now enforceable, but that the lien of said Lansing pending such appeal should be saved, and the amount of said judgment lien, in case said premises be partitioned without sale, should be charged, subject to the finding of the supreme court on said appeal, upon the parcel set off to plaintiff in severalty, or, in case of sale, upon the share of the proceeds of said plaintiff, to be withheld on distribution from plaintiff till said appeal is determined, then to be distributed accordingly as the rights of said parties may be determined on said appeal."

Afterwards the plaintiff, claiming that the judgment mentioned in the foregoing finding had been reversed by this court, asked for the appointment of a referee to inquire into the nature and amount of incumbrances on the property and make a report concerning the same. The matter was referred to Edward P. Brown, Esq., who found and reported: (1) That on June 26, 1893, in a separate action for an accounting then pending in the district court of Lancaster county, James F. Lansing recovered judgment against Henry Oliver for the sum of $ 9,673.66; (2) that said judgment, on appeal to this court, was reversed on May 6, 1896; (3) that on February 23, 1897, the judgment rendered by the district court in the collateral suit was modified by reducing the amount thereof to $ 5,610.36; (4) that this judgment, being brought here for review on error, was reversed on June 3, 1897, and a judgment rendered in this court for $ 7,156.17; (5) that the last mentioned judgment was, pursuant to the mandate, entered in the district court on October 30, 1897; (6) that on January 29, 1897, Henry Oliver and Julia Oliver, his wife, executed to William Oliver a warranty deed conveying the premises in controversy as security for a bona fide indebtedness amounting to nearly $ 30,000; (7) that William Oliver took said conveyance with notice of the proceedings in this action "and subject to the decree therein pronounced;" (8) that the deed to William Oliver was duly recorded February 10, 1897. Upon these facts the referee reached the conclusion that the mortgage of William Oliver was a lien on the fund in question, subject to the lien of Lansing's judgment for $ 7,156.17. The trial court approved this conclusion, but its correctness is challenged by the appeal.

It is quite obvious that the Lansing judgment considered without reference to the claim on which it was based, would be a lien on the plaintiff's interest in the property, or in the proceeds resulting from a sale of such interest, subordinate to the mortgage lien in favor of William Oliver. It is true, of course, as found by the referee, that William Oliver took his conveyance with notice of the pendency of this action and subject to the decree previously pronounced in favor of Lansing; but the permanence of the lien established by that decree was expressly declared to be dependent on the action of this court in the collateral suit. The judgment in the collateral suit was reversed. Its vitality was extinguished, and the lien which depended on its existence was lost. So the finding of the referee upon this point means nothing more than that William Oliver took his conveyance with full knowledge of Lansing's lifeless judgment. All this apparently is conceded by counsel for Lansing, but it is urged with great earnestness that the judgment finally rendered by this court in the collateral suit represents a portion of the purchase price of the property in question; and that, there being a demand for a specific lien asserted in both the cross-petition and supplemental answer, the rights acquired by William Oliver under his deed are subject to the rights of the defendant as ultimately fixed by the judgment of the trial court in this cause. The difficulty with this position is that the record contains no sufficient facts to sustain it. The defendant alleged that this claim was for purchase-money. He alleged that the judgment recovered in the collateral action was for the purchase price of the property in dispute; but the district court, on a trial of the issues, found only that he had a judgment. This finding was, in legal effect, a denial of Lansing's demand for a specific lien grounded on the peculiar character of his claim. The judgment of January 29, 1894, was a final adjudication of all the material facts submitted to the court and within the issues. It was not an adjudication in favor of Lansing upon his asserted right to a specific lien. It merely gave contingent recognition to the lien of a general...