Reynolds v. Deitz

• Court: Nebraska Supreme Court
• Citation: 58 N.W. 89,39 Neb. 180
• Parties: REYNOLDS v. DEITZ ET AL.
• Decision Date: 06 February 1894

39 Neb. 180
58 N.W. 89

REYNOLDS
v.
DEITZ ET AL.

Supreme Court of Nebraska.

Feb. 6, 1894.

Syllabus by the Court.

1. Where several parties purchased real property, the title being taken in the name of one of them as trustee for all the purchasers, and the deed of conveyance to him recited, as part of the consideration for the conveyance, that the grantee named as trustee agreed and assumed to pay a mortgage in existence upon the premises conveyed, held that, upon an averment of the above facts in the petition, there should not be inferred, of necessity, the conclusion that the cestuis que trustent for whom the trustee was acting were individually liable for a deficiency which might remain unsatisfied upon the foreclosure sale of the mortgaged premises. Reeves v. Wilcox, 35 Neb. 779, 53 N. W. 978, followed.

2. An agreement to pay an existing mortgage, as part of the consideration for a conveyance of mortgaged premises, need not be inserted in the deed, neither must it be necessarily in writing. Such an agreement is an independent undertaking of the party making it; the conveyance affording sufficient consideration to sustain it, when its existence is established by a preponderance of evidence. Rockwell v. Bank, 31 Neb. 128, 47 N. W. 641, followed.

3. In the trial court there was evidence that the agreement of the trustee, in whom was vested the title, that he would assume and pay an existing mortgage, was made upon the authority of, and to bind, the cestuis que trustent, contradicted by other evidence upon that proposition. Held, that the finding of the trial court in favor of said cestuis que trustent should not be disturbed.

4. A clerk can settle a bill of exceptions, upon agreement of parties, only when the unanimous consent of all the parties interested is shown by a stipulation to that effect attached to the proposed bill of exceptions, signed either by the parties themselves, or their attorney of record in the case wherein the bill is proposed, or by an attorney or agent whose special authority to sign is affirmatively shown.

5. A bill of exceptions to be settled by the clerk upon agreement of parties must be acted upon by such clerk within the time fixed by statute, or within the time allowed by the court or judge for the settlement of such bill of exceptions.

On rehearing. For former report, see 51 N. W. 747.

[58 N.W. 89]

RYAN, C.

1. There was filed in this case an opinion which was reported in 34 Neb. 265 et seq., 51 N. W. 747. Subsequently, a rehearing was granted, and the case fully reargued, and again submitted for the determination of this court. The history of the transactions out of which it arose is correctly given in the already reported opinion, and need not now be reiterated. Upon a careful examination of the evidence in connection with the pleadings, we are satisfied that some very material--and, indeed, essential--facts have been overlooked. Of this nature is this statement in the opinion referred to: “In the case at bar the proof clearly shows that the cestuis que trustent each purchased and paid for one-tenth portion of the land, and agreed to pay the mortgage as a part of the consideration.” As to the agreement of the cestuis que trustent to pay the mortgage, as a part of the consideration, the only affirmative evidence was given by H. Bostwick. He said that the receipts given by him to the cestuis que trustent were uniform each with the other; that the aggregate amount of the receipts was paid as a part of the consideration for the deed to himself as trustee; that the property was bought subject to a mortgage of $8,600, and that each party then agreed to assume his part of existing mortgage; that the property was put in at $20,000, subject to a mortgage of $8,600 and interest, each party paying his share of the balance in cash. On his cross-examination, Mr. Bostwick testified as follows: “Q. These receipts were all the written articles you had between these other parties? A. No, sir; I had a written agreement,--and it ought to be in existence to-day,--signed by all of them, stating the description of the property, amount of purchase money, and the mortgage, and corroborating me as trustee, and everything in it the same as in the receipts, only

[58 N.W. 90]

more fully set out. It was signed by every one here, and by Mr. Halter for the Lincoln parties. I have looked for it, but cannot find it. I have looked everywhere it is possible for it to be. It is possible that a contract of that kind was drawn and signed at the time the bill was made. Q. The receipts therein date from the 10th to the 16th? A. Yes, sir. Q. And the deed was recorded on the 20th. Now, where was the money paid? A. Well, it was paid right here, but some of the Lincoln parties held some papers. All payments were made right here, and the whole deal was fixed up here. I had never met the Lincoln parties,--I think I met Mr. Hyde,--and I did it all through Mr. Halter for them. He gave a check for the money for them. I think he gave a check for four of them at the same time. Q. These receipts stated all agreements, as far as it stated anything, at the time? A. Yes, sir. Q. You are the one that was arranging in getting up the syndicate, were you? A. Yes, sir. Q. In this agreement, they all agreed to assume their proportionate share of the mortgage? A. Yes, sir. Q. The mortgage was part of the purchase money to be paid subsequently? A. Yes, sir. Q. If the land was not sold? A. Yes, sir. Q. Will you swear that you went into all these details? A. Yes, sir; it was stated in this way in the contract. Now, to refer to another deal, the contract drawn out here, [pointing to the east part of the city,] it was for each one to pay such a share, and then to assume any outstanding incumbrance. This was drawn up in the same way. The article set out that they took the property at so much, and assumed a mortgage for so much, and went on that way.” In contradiction of this evidence, James C. Kay testified as follows: “Q. Have you the original memoranda made at the time you purchased your interest, in June, 1887? A. Yes, sir, [producing check marked “Exhibit J.”] Q. What is that? A. A check on the bank that I gave for the $140. Q. Who drew that check up? A. Mr. Bostwick. Q. Did you sign any other paper? A. No, sir. Q. Did you sign any such paper or agreement as has been referred to in the testimony of Mr. Bostwick? A. I don't remember anything of the kind.” W. H. Fuller testified as follows: “Q. You heard the testimony of Mr. Bostwick? A. Yes, sir. Q. State to the court when, if ever, you signed the written agreement giving authority to him, as he has testified to. A. I never signed any.” Joseph Boehmer testified: “Q. You heard the testimony of Mr. Bostwick? A. Yes, sir. Q. Did you ever sign any such agreement as he refers to? A. No, sir. Q. State if you ever had any conversation about such an agreement. A. Mr. Halter said he had such an agreement, but that he would not sign it for himself, nor would he for any other. Q. Where was that conversation? A. In the bank at Lincoln. Q. Did you act for Mr. Brotherton? A. Yes, sir. Q. Did you ever authorize any one to sign any such instrument for Mr. Brotherton? A. No, sir.” The receipts referred to by Mr. Bostwick, mutatis mutandis, were in the following language: “No. _____. June 18th, 1887. Received of W. H. Fuller five hundred and...