Pierce v. Fontenelle

• Decision Date: 28 November 1952
• Docket Number: No. 33182,33182
• Citation: 55 N.W.2d 658,156 Neb. 235
• Parties: PIERCE v. FONTENELLE et al.
• Court: Nebraska Supreme Court

Page 658

55 N.W.2d 658

156 Neb. 235

PIERCE v. FONTENELLE et al.

No. 33182.

Supreme Court of Nebraska.

Nov. 28, 1952.

Syllabus by the Court.

1. A party may not predicate error upon or be heard to complain about a ruling which he has procured or has been instrumental in bringing about.

2. In an action quia timet questions of title between the parties may be fully litigated and determined and a decree rendered assigning the title to the real estate or any part of it to the party enitled thereto.

3. In such a case the court may also award such incidental relief as may be proper or necessary to make the main relief complete, such as foreclosure of a deed which has been declared to be a mortgage, and the fact that plaintiff alleges ownership in fee does not preclude the court from granting lesser relief if the pleadings and competent evidence justify it.

4. In a case tried to the court, either in law or in equity, the presumption obtains that the trial court in arriving at decision considered only such evidence as was competent and relevant, and this court will not reverse a case so tried because other evidence was admitted, if there is sufficient competent and relevant evidence in the record to sustain the judgment.

5. It is required by statute that consideration shall be set forth in a deed of conveyance of real estate, but when title is attacked on the ground of want of consideration no burden devolves upon the grantee to assume the burden of proving consideration.

6. When an attack is made on a deed on the ground of lack of consideration, the general rule is that the statement of consideration is prima facie evidence which may be rebutted and as a general rule a delivered deed passes title even if there is no consideration.

7. Possession of a deed or other instrument of conveyance by a grantee raises a presumption that the instrument was properly delivered and the burden of proof is upon him who disputes it to overcome the presumption.

8. Such a presumption exists in favor of a grantee who is unable to explain how he came into possession of the deed because disqualified from testifying on account of the death of the grantor.

9. The fact that the grantee kept the deed without recording for a number of years, allowed the grantor to remain in possession, and made no claim to the property until after the grantor's death, does not necessarily overcome the presumption of delivery, when the deed, fully executed, is in his possession.

10. When objection to the admission of evidence as to transactions or conversations with deceased has been properly made by the representative of a deceased person and erroneously overruled, the party making such objection does not waive his rights under the statute by cross-examining the witness on the same matters or offering direct evidence thereon to meet that erroneously admitted.

11. On the other hand, if either on cross-examination or by direct examination the representative goes beyond the scope of the inquiry to which his objection was properly made and as to which it should have been sustained, and introduces evidence of other matters in regard to the original transaction or conversation which is not admissible under the provisions of the statute, then the representative thereby waives the benefit of the statute and any related erroneous rulings of the court.

12. When the representative thus voluntarily opens the door for the purpose of obtaining what he affirmatively desires, he thereby waives the benefit of the statute and gives the interested party the right to further testify in his own behalf and fully explain such transaction or conversation.

Moodie & Burke, West Point, Ralph M. Anderson, Tekamah, for appellants.

Ellenberger & Pipher, Tekamah, for appellee.

William W. Graham, Omaha, for appellees.

Paul W. Eagleton, Tekamah, Alfred D. Raun, Walthill, Van Pelt, Marti & O'Gara, Lincoln, for intervener appellee.

Before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff commenced this action to partition described farm lands, alleging that he was and had been the owner in fee simple of an undivided one-ninth interest therein since July 14, 1939. Defendants included the sole heirs at law of Eugene Fontenelle who died January 12, 1944, the executors of his estate, and The Federal Land Bank of Omaha, which at all times her involved concededly had a first mortgage on the premises.

Thereafter Gerald B. Eagleton, hereinafter called intervener, filed a motion in such action seeking permission to intervene upon the ground that he was the owner of the land by virtue of a warranty deed. Such motion was subsequently sustained by consent of all parties.

Thus a petition in intervention was filed denying that plaintiff had any right or interest in the land, and alleging that intervener was the owner of all the land in fee simple, subject to the mortgage aforesaid, by virtue of a warranty deed executed and delivered to him on January 20, 1943, by Eugene Fontenelle, hereinafter called grantor, which deed was duly recorded. He alleged that defendants had no rights or interest except by inheritance from grantor, all of which had been superseded by said deed which passed title to intervener prior to death of grantor. The prayer of such petition was for dismissal of plaintiff's petition and that title to the land should be quieted in intervener.

Thereafter defendants answered such petition in intervention, denying generally and alleging that the purported deed described in intervener's petition was null and void because obtained by intervener as a result of fraud practiced upon grantor without any consideration paid therefor; that it was never intended by either intervener or grantor that said deed should convey title to the land described therein; and that it conveyed no title or interest to intervener, who had no right, title, or interest in the land. In that connection it alleged that prior to January 20, 1943, date of the alleged execution and delivery of said warranty deed, grantor had conveyed all his interest in the land to two named defendants by quit claim deed of which intervener had actual notice and knowledge, thus grantor then had no interest in the land which could have been conveyed to intervener. It then alleged that said deed to intervener was not recorded until December 27, 1948, during which period he never went into possession of or exercised any right of ownership or dominion over the land, therefore any right of action by virtue of the deed was barred by estoppel and laches. However, the assignments of error and argument here do not present such last-named issues, and they will not be further discussed. The prayer of defendants' answer was for dismissal of intervener's petition and that title to the land should be quieted in them.

Thereafter counsel for intervener filed an amended petition in intervention without intervener's knowledge or consent. Such petition was never signed or verified by intervener or his attorneys then or subsequently, although it was agreed by counsel for the parties that his signature might be affixed thereto prior to trial. Such amended petition alleged that consideration for the deed aforesaid, executed and delivered to intervener by grantor, was an unpaid store account in the sum of $1,581, three notes aggregating $400, and payment of $200 cash at the time said deed was executed and delivered on January 20, 1943. It also alleged that at said time it was orally agreed between intervener and grantor that in event such total of $2,181 with interest at five percent from such date was repaid by grantor to intervener, he would return said deed to grantor or reconvey the land to him; therefore said instrument, although in form a warranty deed, was in legal effect a mortgage. It alleged that no part of such debt or interest thereon had been paid, and no proceedings at law had been had to recover the same, and that there was then due thereon the sum of $2,181 with interest from January 20, 1943. It prayed that defendants should be foreclosed of all equity of redemption or other interest in the land or that the land be sold according to law and intervener be paid the amount adjudged due him out of the proceeds thereof after payment of liens according to their priority, and for equitable relief.

On the day of the trial, defendants filed answer to such amended petition denying generally, and substantially renewing and repeating the allegations of their answer to intervener's original petition. It further alleged, however, that 'said intervener had received full and complete payment of any indebtedness which the said Eugene Fontenelle may have owed to intervener in his lifetime, and that there is nothing due to intervener which might form the basis of a lien on the real estate involved herein.' The prayer was for dismissal of the amended petition in intervention, and that the title to the land should be quieted in defendants.

At the beginning of the trial, counsel for defendants informed the court that some of the defendants had purchased plaintiff's one-ninth interest and taken an assignment of his cause of action together with a deed to his interest in the land involved, therefore plaintiff's case would not be for trial at that time. In that connection, plaintiff, whose interest was apparently prior to that of intervener, was not a representative of deceased. Therefore, the case actually tried was the controversy between intervener and defendants. In such situation intervener was required to proceed as if he were plaintiff.

Thereat evidence was adduced by intervener and he rested, whereupon defendants offered no evidence and rested. During the trial at conclusion of intervener's direct evidence his counsel requested leave of court to withdraw his amended petition in intervention and rely upon his original petition, the allegations of which conformed to the...