Schaneman v. Wright, 89-192

• Decision Date: 07 June 1991
• Docket Number: No. 89-192,89-192
• Citation: 238 Neb. 309,470 N.W.2d 566
• Parties: Clyde E. SCHANEMAN and Barbara K. Schaneman, Appellees and Cross-Appellants, v. Flavel A. WRIGHT et al., Appellants and Cross-Appellees.
• Court: Nebraska Supreme Court

Page 566

470 N.W.2d 566

238 Neb. 309

Clyde E. SCHANEMAN and Barbara K. Schaneman, Appellees and Cross-Appellants, v. Flavel A. WRIGHT et al., Appellants and Cross-Appellees.

No. 89-192.

Supreme Court of Nebraska.

June 7, 1991.

Syllabus by the Court

1. Pleadings. Under the provisions of Neb.Rev.Stat. § 25-824 (Reissue 1989), the signature of a party or of an attorney on a pleading constitutes a certificate by him or her that he or she has read the pleading; that to the best of his or her knowledge, information, and belief there is good ground for the filing of the pleading; and that it is not interposed for delay.

2. Pleadings: Waiver. The failure of a party to sign an answer is waived if not raised before trial.

3. Quiet Title: Proof. The plaintiff in an action to quiet title has the burden of proof and must recover on the strength of his or her own title and not the weakness of defendant's title.

4. Trusts: Proof. The burden of proof is upon one seeking to establish and enforce a trust to prove the same by clear and convincing evidence.

5. Trusts: Parol Agreement: Statute of Frauds. An express trust in real estate may not be created by parol agreement, for such agreement contravenes the statute of frauds.

6. Trusts: Statute of Frauds. Under the statute of frauds, an express trust in land (as opposed to a constructive or resulting trust) can only be created or declared by deed of conveyance in writing, subscribed by the party creating or declaring the same.

7. Trusts: Statute of Frauds. A memorandum properly signed is sufficient to satisfy the requirements of the statute of frauds if, but only if, it sets forth with reasonable definiteness the trust property, the beneficiaries, and the purposes of the trust.

8. Trial: Evidence: Appeal and Error. As a general rule, a litigant cannot introduce evidence and later complain that it was error to consider such evidence.

9. Appeal and Error. One who has invited error cannot be heard to complain of it.

10. Trial: Evidence: Affidavits. As a general rule, an affidavit cannot be used to establish facts material to the issue being tried.

11. Evidence: Affidavits: Real Estate: Title. Under Neb.Rev.Stat. § 76-271 (Reissue 1990), an affidavit explaining or correcting an apparent defect in the chain of title may be recorded as an instrument affecting real estate, and such record shall be prima facie evidence of the facts therein recited.

12. Parol Evidence: Contracts. The parol evidence rule renders ineffective proof of a prior or contemporaneous oral agreement which alters, varies, or contradicts the terms of a written agreement.

13. Property: Contracts: Parol Evidence: Trusts. If the owner of property makes an inter vivos transfer by a written instrument which declares that the transferee is to take the property for his or her own benefit, then absent proper grounds for rescission or reformation, the parol evidence rule will bar extrinsic evidence that the transferee was intended to hold the property in trust; but if the instrument does not declare that the transferee is to take the property either for his or her own benefit or in trust, then extrinsic evidence may be admitted to show how the transferee was intended to hold the property.

14. Adverse Possession. One who claims title by adverse possession must prove by a preponderance of the evidence that he or she has been in actual, continuous, exclusive, notorious, and adverse possession under claim of ownership for the full 10-year statutory period.

15. Adverse Possession. The sufficiency of the possession required to establish title by adverse possession is dependent upon the character of the land and the use which can reasonably be made of it.

16. Adverse Possession: Oil and Gas: Mines and Minerals. When there has been a severance of the mineral estate from the surface estate, mere occupancy of the surface is insufficient to establish title to the minerals by adverse possession; an actual, public, notorious, and uninterrupted working of the minerals under a claim of ownership for the statutory period is generally required; the mere execution, delivery or recording of oil and gas leases or mineral deeds does not constitute adverse possession.

Kathleen A. Jaudzemis, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellants.

Robert G. Simmons, Jr., of Simmons, Raymond, Olsen, Ediger, Selzer & Ballew, P.C., Scottsbluff, for appellees.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. INTRODUCTION

Defendants-appellants and cross-appellees, Flavel A. Wright and his spouse, Dorothy Wright Hughes and her spouse, Betty Wright Evers and her spouse, Fred Wright and his spouse, and Barbara Overholt and her spouse, assert the district court erred in quieting title to certain mineral rights in plaintiffs-appellees and cross-appellants, Clyde E. Schaneman and his spouse, Barbara K. Schaneman, by virtue of improvidently finding that (1) there existed no trust of those rights for the benefit of the defendants and (2) transference of the surface estate conveyed the mineral rights as well. By their cross-appeal, the plaintiffs challenge certain evidential rulings. We reverse.

II. FACTS

On November 20, 1968, Elizabeth R. Wright, a widow, executed a deed conveying the mineral interests in her Scotts Bluff County land to one of her sons, Floyd E. Wright, subject to an existing lease of the oil and gas rights to Walter Ohmart, Jr. The mineral deed otherwise absolutely conveyed the mineral estate to Floyd E. Wright. This mineral deed was filed with the appropriate register of deeds on November 29, 1968. On January 13, 1969, "Floyd E. Wright Trustee" ratified the aforementioned Ohmart lease. On November 6, 1969, Floyd E. Wright and his wife, Elsie, as lessors executed a second oil and gas lease with Ohmart as lessee. This document made no reference to a trust or trustee.

Elizabeth R. Wright died October 20, 1972, and Floyd E. Wright became executor of her estate. The subject land was then listed for sale. Plaintiffs sought to elicit testimony from real estate agent Victor Asmus that the listing included the mineral rights. Defendants objected on the ground that the testimony was barred by the parol evidence rule and was therefore irrelevant. The objection was sustained, and plaintiffs made an offer of proof, showing that if permitted, Asmus would testify that upon inquiry Floyd E. Wright said that all the mineral rights were going to be conveyed and, further, that he, Asmus, on behalf of Floyd E. Wright, represented to the Schanemans that if they purchased the land, they would receive all the mineral rights.

On March 10, 1973, plaintiff Clyde Schaneman, John L. Schaneman, and Clara B. Schaneman executed an offer to purchase the land at issue, "[t]ogether with all tenements, hereditaments, and appurtenances thereto pertaining. Subject to all easements, rights-of-way, and reservations of record. Further subject to Tenant's Lease in possession for crop year of 1973." The receipt for the earnest money the Schanemans tendered and the acceptance of offer were signed by "John F. Wright ... for Floyd E. Wright Executor of the Estate of Elizabeth R. Wright."

During the title search, plaintiffs' attorney discovered the mineral deed, various oil and gas leases, and the ratification by Floyd E. Wright "Trustee," and through his title opinion brought these items to John Schaneman's attention.

Apparently in response to concerns raised by the title search, Floyd E. Wright, on July 20, 1973, executed an affidavit, which reads:

FLOYD E. WRIGHT, being first duly sworn on his oath, deposes and states:

1. That he is a son of Elizabeth R. Wright, who died October 20, 1972, and a resident of Scotts Bluff County, Nebraska and that he looked after and managed the following:

[Legal description of the subject land]

for his mother during all of the times that she owned the said land.

2. That on or about November 20, 1968, his mother, Elizabeth R. Wright, a widow, executed to him, a mineral Deed conveying to him all of the minerals in, on or under the said land, under an agreement whereby the affiant, Floyd E. Wright was to hold the said minerals in trust for himself, his brother and his sisters, one-fifth each and in trust for Fred Wright and Barbara Overholt, children of a deceased brother, William H. Wright, one-fifth each.

3. Affiant further states that during the time that Elizabeth R. Wright owned the said land, several oil and gas leases were granted to various lessees but that no drilling for oil and gas was ever done upon the said land and that there has never been any production of oil, gas or other minerals from the said land.

On August 8, 1973, Floyd E. Wright, both individually and as executor of the estate of his mother, together with his wife, executed a warranty deed in favor of plaintiffs, providing:

FLOYD E. WRIGHT, Executor of the Estate of Elizabeth R. Wright, Deceased; and, FLOYD E. WRIGHT and ELSIE WRIGHT, Husband and Wife, herein called the grantor whether one or more, in consideration of ONE HUNDRED AND FIFTEEN THOUSAND AND NO/100 ____________ ($115,000.00) ____________ DOLLARS received from grantee, does grant, bargain, sell, convey and confirm unto CLARA B. SCHANEMAN, an undivided one-half ( 1/2); and, CLYDE E. SCHANEMAN and BARBARA K. SCHANEMAN, Husband and Wife, an undivided one-half ( 1/2), herein called the grantee whether one or more, the following described real property in Scotts Bluff County, Nebraska:

[Description of land at issue]

SUBJECT TO the surface lease to Larry Kilthau.

To have and to hold the above described premises together with all tenements, hereditaments and appurtenances thereto belonging unto the grantee and to grantee's heirs and assigns forever.

And the grantor does hereby covenant with the grantee and with grantee's heirs and assigns that grantor is lawfully seised of said premises; that they are free from encumbrance[;]...