Pleasants v. Blodgett
| Decision Date | 01 July 1891 |
| Citation | 49 N.W. 453,32 Neb. 427 |
| Parties | GEORGE W. PLEASANTS, APPELLEE, v. HARRISON H. BLODGETT ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county. Heard below before FIELD, J.
AFFIRMED.
H. H Blodgett, J. C. Johnston, and A. E. Howard, for appellants cited: 1 Wharton, Ev. [3d Ed.] secs. 141, 142, and cases; 2 Id., sec. 1120 and cases; Moore v. Livingston, 28 Barb. [N.Y.] 543; Edwards v. Noyes, 65 N.Y. 125; Metcalf v. Van Benthuysen, 3 N.Y. 424; Perry v Burton, 111 Ill. 138; Browne, Stat. of Frauds [4th Ed.] secs. 464, 465, 466; Story, Eq. Jur., sec. 761; Wilkinson v. Scott, 17 Mass. 249; Sutton v. Sutton, 13 Vt. 71; Kelley v. Stanbery, 13 O., 408; Jones v. Pease, 21 Wis. 644; Fitzsimmons v. Allen, 39 Ill. 440; Baker v. Wiswell, 17 Neb 59; Wood, Lim., secs. 254, 267, p. 79, and cases; Gatling v. Lane, 17 Neb. 82; Herdman v. Marshall, 17 Neb. 252, 22 N.W. 690; Grattan v. Wiggins, 23 Cal. 16; Lord v. Morris, 18 Cal. 482; Elkinton v. Newman, 20 Pa. 281; Dawson v. Callaway, 18 Ga. 573; Baldwin v. Boyd, 18 Neb. 449; Wakefield v. Day, 41 Minn. 344.
Charles L. Hall, and Charles O. Whedon, contra, cited: Hathaway v. Payne, 34 N.Y. 92; Hoyt v. Schuyler, 19 Neb. 657.
On June 18, 1889, it was alleged, in this case, that the appellee and plaintiff below, on February 2, 1874, bought of S. M. Boyd lot 5, in block 194, in the city of Lincoln, and on the following day executed and delivered to Boyd a mortgage upon the premises to secure the payment of his note to Boyd for $ 25 as the unpaid remainder of the purchase money, which mortgage was filed for record in the office of the county clerk on February 14 following:
3. That on February 3, 1874, when the mortgage was executed to Boyd, he and his wife executed and delivered to the appellee a deed of general warranty for said lot, excepting taxes charged against it, which deed was not recorded, has since been lost, and cannot now be found.
4. That the appellee has paid the taxes for the year 1872, and for subsequent years to 1889, and now has the lot in possession and under cultivation.
5. That on August 6, 1875, Harrison H. Blodgett obtained from Boyd a pretended deed of quitclaim to the premises, without consideration, which conveyed no title, and which was concealed and not placed on record until August 9, 1886, when it was recorded in book 29, p. 325.
6. That on May 10, 1889, Blodgett conveyed the east half of said lot to Silas P. Ritchey and Louisa his wife, by special warranty, covenanting to defend the title only against his own acts, without consideration, recorded in book 52, p. 473.
7. That on May 10, 1889, Ritchey and his wife mortgaged said east half of said premises to said Blodgett for the full amount of the consideration of the deed from Blodgett to Ritchey, recorded in book 47, p. 532.
8. That on May 11, 1889, Blodgett in fraud of the rights of appellee, conveyed the west half of said lot 5, in block 194, to Elijah D. Ritchey, by deed of warranty against the acts only of Blodgett, without consideration, recorded in book 53, p. 119.
9. That on May 11, 1889, Elijah D. Ritchey mortgaged said west half of said lot to Blodgett for the full amount of the consideration of his deed from Blodgett, recorded in book 48, p. 171.
10. That at the times when these pretended conveyances were made, on August 6, 1875, S. M. Boyd, and on May 10 and 11, 1889, said defendants, neither Boyd nor Blodgett nor Ritchey, Louisa or Elijah, were in possession of the premises, but this plaintiff at said times was in full, open, notorious, adverse, and undisturbed possession of all of said lot 5, block 194, and so had been in possession from February 3, 1874, to May 10, 1889, had continuously paid the taxes thereon, had put the lot into cultivation and improved the same, and now is in possession thereof.
11. That the deed from Boyd to Blodgett, and the deeds from Blodgett to Silas P. Ritchey and his wife Louisa, and to Elijah D. Ritchey, and the mortgages from the Ritcheys to Blodgett, constitute clouds upon the appellee's title, and he asks for special relief therefrom; that the title to lot 5, block 194, be quieted forever in him, and that the defendants be perpetually enjoined from interfering with his enjoyment of the possession thereof or his title thereto.
The defendants answered that on August 6, 1875, S. M. Boyd and his wife, Mary E. Boyd, conveyed to him, for a valuable consideration, the premises heretofore described, which conveyance was recorded in book N, p. 104.
2. That on May 10, 1889, Blodgett conveyed for a valuable consideration the east half of lot 5, in block 194, to Silas P. Ritchey and wife, which conveyance was recorded in book 52, p. 478, for $ 380, due $ 100 in one year, $ 140 in two years, and $ 140 in three years, and mortgage securing said notes duly recorded in book 47, p. 532.
3. That on May 11, 1889, Blodgett conveyed, for a valuable consideration, the west half of said lot 5 to Elijah D. Ritchey, recorded in book 53, p. 119, and Ritchey in part payment mortgaged the same to secure his notes therefor, recorded in book 48, p. 177.
4. Silas Ritchey and Louisa, his wife, built a dwelling house on the east half of the lot, and have ever since lived therein; built a barn and outhouses and dug a well, set out evergreens, etc., to the value of $ 500, and about a month thereafter the plaintiff moved a shanty worth $ 10 on the alley of the lot and has since occupied the same against the defendants' wish and consent, and not until then did defendants Ritchey know that the plaintiff claimed any interest in or right to the lot.
5. On February 3, 1874, Boyd and the appellee, being penniless and insolvent, colluded and confederated to make a security for the market, and without consideration the appellee made his note for $ 25, secured by mortgage on lot 5, block 194, Boyd's lot, and Boyd was to pay the note due and save plaintiff harmless, and said mortgage was released at the same time it was made. Defendant denies each and every allegation not heretofore admitted.
Second--That the cause of action stated in the petition did not accrue within ten years next before the commencement of this action. The appellee replied denying each and every allegation of the answer.
There was a trial to the court, with decree for the plaintiff, on April 17, 1890, wherein it was found that the plaintiff was the owner of, and had the legal estate in, and was entitled to, the possession of the real property described; that neither the defendants, nor any of them, have any estate in or are they entitled to the possession of the real estate or any part thereof, and that the deed to said premises from S. M. Boyd to Harrison H. Blodgett, and from Harrison H. Blodgett to Silas P. Ritchey and Louisa, his wife, and from Harrison H. Blodgett to Elijah D. Ritchey, and the mortgage deeds from Silas P. Ritchey and Louisa, his wife, to Harrison H. Blodgett are each and all of them void and of no effect in law or equity as to the title of said premises, and that each and all of them should be canceled, set aside, and held for naught, and that the title to said real estate should be quieted and set at rest in the plaintiff as against each and every one of the defendants, as prayed for in the petition.
It was ordered, adjudged, and decreed that the quitclaim deed to the real estate in controversy from S. M. Boyd to H. H. Blodgett dated August 6, 1875; that the deed of H. H. Blodgett of the east half of lot 5, in block 194, in the city of Lincoln, to Silas P. Ritchey and Louisa, his wife, dated May 10, 1889, recorded in book 52, p. 478; that the deed of the west half of lot 5 in block 194, in the city of Lincoln, to Elijah D. Ritchey, dated May 11, 1889, recorded in book 53, p. 119; that the mortgage deed for said east half of lot 5, in block 194, in the city of Lincoln, from Silas P. Ritchey and Louisa, his wife, to Harrison H. Blodgett, dated May 11, 1889, recorded in book 47, p. 532, and the mortgage deed to the west half of lot 5, in block 194, in the city of Lincoln, from Elijah D. Ritchey to H. H. Blodgett, dated May 11, 1889, recorded in book 48, p. 171, be, and the same, and each of them, hereby are, declared to be null and void, and of no force or effect in law or equity to affect the title to the real estate described. That the title and possession of George W. Pleasants to all and singular the premises, lot number 5, in block 194, in the city of Lincoln, be, and the same are, hereby quieted as against the defendants, and each of them, and all persons claiming under them, or any of them, and they are hereby forever enjoined from setting up any claim to said premises, or any part thereof, adverse to the title and possession of George W. Pleasants, his heirs or assigns, thereto, and the sheriff of Lancaster county is hereby ordered to put the said George W. Pleasants in possession of said real estate. And the said Pleasants shall recover of said Blodgett, Silas P. Ritchey and Louisa, his wife, and of Elijah D. Ritchey, the costs of this proceeding, taxed at $ 66.25. To all of which findings and decree the defendants excepted upon the record and appealed their case to this court.
On the direct examination of the appellee in the court below, he testified that when he bought the lot on February 3, 1874, from Boyd, he delivered a mortgage to Boyd for the balance of the purchase money, and that Boyd had told him that he had executed and delivered a deed for him, in the hands of N. S. Scott, which he could get whenever he paid off the mortgage.
John Morrison testified that he had bought this note and mortgage from Boyd, and that Boyd had told him that he had sold this lot and had conveyed the same to Pleasants;...
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