Pinkham v. Pinkham

• Court: Supreme Court of Nebraska
• Writing for the Court: HOLCOMB
• Citation: 83 N.W. 837,60 Neb. 600
• Decision Date: 03 October 1900
• Parties: PINKHAM v. PINKHAM ET AL.

60 Neb. 600
83 N.W. 837

PINKHAM
v.
PINKHAM ET AL.

Supreme Court of Nebraska.

Oct. 3, 1900.

Syllabus by the Court.

[83 N.W. 837]

1. In a controversy over the title to real estate, appellants claimed as heirs, and appellee as grantee, under a deed of conveyance from the same party. On appeal to this court, the instrument under which appellee claimed was construed to be testamentary in character, passing no present estate. Held, after the action was remanded for further proceedings, with directions to proceed according to law, that the appellee might properly amend his answer by pleading a mistake in the drafting of the instrument, in that it was stated, “This deed is to take effect and be in full force from and after my death,” whereas the true intention and desire of the parties thereto was to reserve to the grantor only a life estate in said premises, and asking for a reformation accordingly.

2. In proceedings in an action as above mentioned, the opinion of this court, construing the instrument to be testamentary in character, will not be deemed res adjudicata as to the alleged mistake by appellee in his amended answer.

3. Where, upon appeal to this court, the judgment of the trial court is reversed, and the case remanded for further proceedings, with directions to proceed according to law, held, that the case was remanded generally, and not specially or for any particular purpose.

4. Where, in an equitable action, the decree of the trial court is reversed, and the case remanded generally, the situation of the parties is the same as at the beginning of the trial, and, in the exercise of a sound discretion vested in the trial court, amendments of the pleadings may be made not inconsistent with the opinion of the appellate court, and a trial of all the issues had de novo.

5. A deed of conveyance founded upon a consideration to be paid to a third party therein named, and for labor expended on the premises conveyed, and for care and support of the grantor, is not a voluntary instrument, and mistakes in its execution may be corrected in a court of equity.

6. An instrument intended to operate as a conveyance of land is reformable in character, and where, in its drafting by a notary public, words are used which give to it the character of a testamentary instrument, passing no present estate, when the intention of the parties was to reserve to the grantor only a life estate in the premises conveyed, such mistake may be corrected in a court of equity to conform to the true intention of the parties to such instrument.

7. Where the title of a person in the undisputed possession of land is challenged, he may set forth any equitable defense in favor of his right to the property, and the statute of limitations

[83 N.W. 838]

will not run so as to prevent him from setting forth such defense.

8. In a controversy where the relief demanded consists in the correction of an alleged mistake made in the drafting of a deed conveying land, which was executed several years before the mistake was pleaded, and the correction of the mistake involves no change of actual possession or disturbance of investments made by the party against whom the correction is sought, and leaves the enjoyment of the property to go on in harmony with the prior acts of the parties in interest, the statute of limitations being pleaded, held, that the statute begins to run only from the discovery of the mistake, or of such fact or facts as would put a person of ordinary intelligence and prudence on inquiry, which, if pursued, would lead to such discovery. Ainsfield v. More, 46 N. W. 828, 30 Neb. 385, followed.

9. Where, in a deed conveying real estate, as a part consideration therefor, it is provided that the grantee shall pay to a person therein named $50 per annum for 10 years, and which payment is assumed by the grantee by the acceptance of the deed, held, that the sum so to be paid is, and was intended to be, a charge upon the land, and its payment secured as an equitable lien on such land.

Appeal from district court, Otoe county; Ramsey, Judge.

Action by Martha F. Pinkham against John H. Pinkham and others impleaded with Emma E. Ryan and others. Judgment for defendant John E. Pinkham, and Martha F. Pinkham and E. E. Ryan and others appeal. Affirmed.

Ricketts & Ricketts and Ricketts & Wilson for appellants.

John C. Watson, F. E. Brown, and Frank Irvine, for appellee.

HOLCOMB, J.

The present controversy arises over the title to certain real estate claimed by appellants as heirs, and by the appellee as grantee, of one Calvin Pinkham, now deceased. The validity of the instrument under which appellee claims title is challenged on the ground of fraud and undue means in its procurement, and it is also averred in the petition that it was executed in anticipation of the death of the grantor, as a final disposition of his property, and that, after recovery, he sought to revoke and cancel the same, but was prevented from so doing through fear of bodily harm at the hands of the grantee. The case has once prior been before this court, the opinion then rendered being found in Pinkham v. Pinkham, 55 Neb. 729, 76 N. W. 411. It is there held that the instrument under which appellee's right to the land is to be determined, although in form a deed, by its terms was to operate only after the death of the grantor, was testamentary in character, and passed no present estate in the premises therein described. The decree of the trial court, quieting title in appellee, was reversed, and the cause remanded for further proceedings, with directions to proceed according to law.

After the case was remanded, appellee applied for and obtained leave to amend his answer so as to plead mistake and error in the manner of drawing the deed, it being pleaded in the amendment that the recital, “This deed is to take effect and be in full force from and after my death,” should read according to the true intention and desire of the parties, so as to reserve to the grantor only a life estate in said premises, and asked for a reformation of the instrument by a correction of the alleged mistake, so as to make it conform to the desire and intention of the parties. Issues were joined under the amended pleadings, and a trial thereof resulted in a second decree in favor of appellee, reforming the instrument as prayed for, and quieting the title in the said John H. Pinkham, appellee. Appellants claim that the character of the instrument under which appellee claims was litigated in the first trial, and that the opinion rendered in this court on the first appeal, construing the instrument as testamentary in character, has become “the law of the case,” thereby preventing further litigation regarding the said instrument.

It is very true that a decision by the appellate court upon any question presented to it in reviewing the proceedings of the trial court ordinarily will not be re-examined, and becomes the law of the case, binding upon the court and the parties in the further litigation of the case, from the consequences of which the court cannot depart, nor the parties relieve themselves. Association v. Kettenbach, 55 Neb. 330, 75 N. W. 827;O'Donohue v. Hendrix, 17 Neb. 287, 22 N. W. 548;Hiatt v. Brooks, 17 Neb. 33, 22 N. W. 73. It is not, however, we assume, in the present case, a question as to what the rule is, so much as to whether it is applicable to the point under consideration. On the first appeal, it was determined that the deed, in the form in which it was written, was testamentary in character, and passed no present estate in the land. That question has been adjudicated, and will not be, nor is there any request to have it, further examined into or overturned.

Can it be said that the question as to the right of appellee to have a reformation of the instrument under which he claims has been determined in the opinion first rendered? We think not. This proposition is entirely different from the construction of the instrument according to the wording then on the face of it. It is incontrovertible that in the first opinion the question under consideration was as to the legal effect of the instrument in its present form, while in the present hearing we are confronted with the proposition of correcting an alleged mistake,--an entirely separate and independent proposition from that first considered. The latter question brings into the case an element not heretofore considered or determined, and the doctrine of the law of the case would therefore seem to be inapplicable.

It is, however, urged that, the character of the instrument being in issue in the first trial, the defendant was required to set forth his defense with respect to the alleged mistake,

[83 N.W. 839]

which, it is admitted, he might have done on that trial, and that, because of his failure so to do, the opinion on the first appeal has rendered the character of the instrument res adjudicata. We are cited to a number of cases to support the rule that all defenses that might have been interposed will be deemed to have been adjudicated in the trial of a cause, and are...