Omaha Loan & Trust Co. v. Goodman

• Decision Date: 19 June 1901
• Citation: 86 N.W. 1082,62 Neb. 197
• Court: Nebraska Supreme Court
• Parties: OMAHA LOAN & TRUST CO. v. GOODMAN ET AL.

62 Neb. 197

86 N.W. 1082

OMAHA LOAN & TRUST CO.

v.GOODMAN ET AL.

Supreme Court of Nebraska.

June 19, 1901.

Syllabus by the Court.

1. Contract running to a corporation to be formed, and providing for a conveyance of land to it on certain conditions, must be taken as an offer, whose acceptance within a reasonable time, by forming the corporation and performing the conditions, would constitute a valid agreement.

2. An agreement to furnish bond in sum of $150,000 to locate a university, and commence building by May 1, 1888, and complete it by May 1, 1890, at cost of $50,000 or more, “and this and other buildings and campus to be used for university purposes,” is not fulfilled by simply locating and erecting a building of the required cost within the time.

3. Agreement to convey 10 acres of 40 owned by vendor, “being every fourth block in said forty acres,” when the 40 acres consists of blocks 59 and 60, 73 and 74, 75 and 76, and the north half of 91 and 92, is too indefinite and uncertain for specific enforcement.

Appeal from district court, Lancaster county; Holmes, Judge.

Action by the Omaha Loan & Trust Company against Emma Goodman and others. Judgment for defendants, and plaintiff appeals. Modified.

Congdon & Parish and F. A. Brogan, for appellant.

C. M. Parker, for appellees.

HASTINGS, C.

In the year 1887 C. F. Goodman, with others, signed an agreement providing that the subscribers should pay the money and convey the lands and lots opposite their names to secure the location and building of the University of the Christian Church of Nebraska on a certain quarter section of land in Lancaster county. The money was to be paid, one-fourth when half the foundation should be laid, and the rest in one, two, and three years, with 8 per cent. interest. The lands were to be deeded to trustees when the university location should be agreed to by the state convention of the church; the trustees to give a good and sufficient bond to the subscribers that one of the buildings should be completed by January 1, 1890, and “permanently used for the purpose of a Christian university.” Some other conditions were attached. Goodman's subscription was 10 acres of land, wholly undescribed. Subsequently the following agreement was made: “Articles of agreement made this 30th day of December, in the year of our Lord one thousand eight hundred and eighty-seven, between C. F. Goodman and Emma Goodman, party of the first part, and the Nebraska Christian Educational Board (when incorporated), party of the second part, witnesseth: That said party of the first part hereby covenants and agrees that, if the party of the second part shall first perform the covenants hereinafter mentioned on their part to be made and performed, the said party of the first part will convey and assure to the party of the second part in fee simple, clear of all incumbrances whatever, by good and sufficient warranty deed, the following lot, piece, or parcel of ground, viz.: Ten acres in the N. E. 1/4 of the N. W. 1/4 section 21, town. 10, range 7 east, 6 P. M., being every fourth block in said forty acres; said parcel of ground to be conveyed on or before the first day of May, 1888, or as soon as I can obtain a release from the parties holding mortgages; and this agreement to take place of the one previously signed by me, agreeing to donate ten acres for the benefit of parties locating a college in that neighborhood. And the party of the second part hereby covenants and agrees to execute and place in trust a bond in the sum of $150,000, at issue of above deed, that they will locate the University of the Christian Church of Nebraska on the S. E. 1/4 of section 16, town. 10, range 7 east of the 6th P. M., and to commence one of the buildings of said university by the first day of May, 1888, and complete same by the first day of May, 1890, at a cost of $50,000.00 or more; and this and other buildings and campus to be used for university purposes. And, in case of the failure of the said party of the second part to perform any of the covenants on their part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all rights in this contract, and said first party shall have the right to re-enter and take possession of the premises aforesaid. It is mutually agreed that all of the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, and assigns of the respective parties.” It was signed only by Goodman and wife. It appears that the educational board referred to was organized February 14, 1888. No bond was ever given as provided in the agreement. The university was located as agreed, and a building commenced within the time, and finished in April, 1890, costing about $80,000. The deed was not given. At the time of the agreement the 40 acres consisted of blocks numbered 59 and 60, 73 and 74, 75 and 76, and contained the north half of blocks numbered 91 and 92 in Bethany Heights addition to Lincoln, and all belonged to Goodman. In 1899 the board procured appointment of appraisers under the statute, and had their property appraised, including subscriptions and donations, but it did not include this land or contract. C. R. Van Duyn, treasurer, says that Goodman told him that when he could get a blanket mortgage off this land he would deed. Van Duyn thinks this was in 1893. No other claim of right by the board appears, and in 1892 Goodman and wife vacated the plat of Bethany Heights as to this land. October 14, 1893, the plaintiff loan company filed a judgment in Lancaster county against Goodman for $1,099.51, and $17.48 costs. November 4, 1893, the agreement was filed with the register of deeds, and recorded in the miscellaneous records. It was never acknowledged. November 17, 1893, Goodman and wife made a mortgage to the First National Bank of Omaha for $6,000 on this 40 acres and other lands. The judgment of plaintiff appearing on record, its amount was deducted from the $6,000 and indorsed on the note. January 11, 1896, plaintiff commenced suit to set aside an old mortgage and have the property sold on its judgment, making the First National Bank and Goodman's widow and executrix (he having died in 1895), his children, the educational board, and one Robert S. Dill, parties defendant, together with a mortgagee whose lien was alleged to have been satisfied. It asked that all parties be compelled to show their rights and priorities, and a sale had to satisfy its judgment. Dill answered, setting out the facts as to the educational board's claim, and an assignment January 26, 1896, of that claim to himself, and asked specific performance as to an undivided one-fourth of the 40 acres. The First National Bank answered, denying any right in Dill, admitting plaintiff's lien as first, and asking to foreclose its mortgage for...