Schroeder v. Bartlett

• Citation: 262 N.W. 447,129 Neb. 645
• Decision Date: 20 September 1935
• Docket Number: 29297.
• Parties: SCHROEDER ET AL. v. BARTLETT ET AL.
• Court: Supreme Court of Nebraska

262 N.W. 447

129 Neb. 645

SCHROEDER ET AL. v. BARTLETT ET AL.

No. 29297.

Supreme Court of Nebraska.

September 20, 1935

Syllabus by the Court.

1. One of the tests to determine whether a warranty deed, absolute on its face, should be held to be a mortgage, is whether the parties continue to treat each other as debtor and creditor. If they do not, the deed is presumably good as an absolute conveyance.

2. When defendant moves to dismiss plaintiff's action at the close of plaintiff's evidence, the defendant thereupon admits the plaintiff's testimony to be true, together with every conclusion which may fairly and reasonably be drawn therefrom.

3. The court must thereupon deter mine, as a question of law, whether plaintiff's evidence is sufficient to support a judgment for the plaintiff.

4. The court having determined that the plaintiff failed to make out even a prima facie case, it is not necessary for the court to allow the case to proceed further.

5. While a district judge has power to modify any ruling made during the same term of court, yet it is improper for such court, without notice to plaintiff or his attorney, and in their absence, to reopen a case which was dismissed when the plaintiff rested, and grant the relief asked for in the answer, when no evidence had been taken in support thereof.

Appeal from District Court, Dawson County; Nisley, Judge.

Suit by Albert F. H. Schroeder and another against Bunkum Bartlett and another. From a decree for defendants, plaintiffs appeal.

Affirmed as modified.

Harry R. Ankeny, of Lincoln, and R. E. Bannister, of Cozad, for appellants.

Frank M. Johnson, of Lexington, for appellees.

Heard before ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ., and BLACKLEDGE, District Judge.

PAINE Justice.

This is a suit in equity to have a warranty deed and an option to repurchase the land conveyed and a lease for the rental of the same land all construed together as a mortgage.

The petition alleged the ownership of the real estate in the plaintiff, who upon February 15, 1930, gave the defendant a mortgage bond thereon in the sum of $7,500; that on October 10, 1932, the plaintiff was in financial distress, and owed a balance of coupon No. 4 in the sum of $55, and all of coupon No. 5 in the sum of $225. Defendant insisted upon payment of the entire mortgage indebtedness because of said defaulted interest, and threatened immediate foreclosure thereof. Defendant insisted that if plaintiff would give him a warranty deed for the property he would give him back a one-year lease of the property together with an option for one year to repurchase the said property for the exact amount of the indebtedness. Plaintiff alleges that defendant represented to him that said papers would thereby extend the time of payment of the amount then due for one year and be considered as further security for the original debt; that said three instruments were all executed at the same time and place, and were parts of the same transaction. The prayer of the petition was that an account be taken of the amount due the defendant from the plaintiff, and that the three instruments be decreed to be a single transaction and constitute a mortgage, and that plaintiff be given the right to redeem said premises, and that the court cancel said deed and quiet the title of the property in the plaintiff.

To this the defendant answered, admitting the execution of the mortgage, and that the interest was in default, and to obviate the necessity of a foreclosure an agreement was reached whereby the warranty deed, the option to repurchase and the lease were given, and that it was orally agreed that the defendant was to pay the 1933 water maintenance, and the plaintiff would give as rent two-fifths of the corn raised on the land and $64 cash rent for the alfalfa ground. That in pursuance to the terms of the lease the plaintiff delivered to the defendant the two-fifths share of corn produced, and at the termination of the lease refused to give possession of the premises to the defendant, and defendant prayed that plaintiff's action be dismissed and title to the land quieted in the defendant, and the defendant be decreed to be entitled to immediate possession of the land; to which answer the plaintiff filed a reply in the nature of a general denial.

When the plaintiff had rested his case, the following motion was made by defendant's counsel: " Mr. Johnson: Comes now the defendant and moves the court to dismiss the action of plaintiffs because the evidence introduced by the plaintiffs fails to constitute a cause of action against the defendants, or either of them, and for the further reason it is shown by the plaintiffs' own testimony that the note and mortgage were returned to them after the deed was executed; that the relation of landlord and tenant has existed since that time; that the share-rent of the corn has been turned over to the defendant and the plaintiff asking the defendant if he desired to sell the corn; and the plaintiff further endeavoring to rent the premises from the defendant for the crop year beginning March 1, 1934, and ending March 1, 1935; and for the further reason that it is shown that exhibit 3, the option to repurchase contract, was founded upon a new and independent consideration, which was paid by plaintiffs to defendants, and that the plaintiffs have failed to exercise their rights under said option to repurchase."

It appears from the evidence that the plaintiffs well knew that they were signing a warranty deed and taking a lease of the premises with the option to buy. Thereafter they recognized the defendant as the owner of the property. The defendant paid the taxes assessed against the property, and directed the building of a crib in which to put his two-fifths rent share of the corn crop. On February 1, 1934, the plaintiff asked the defendant for an extension of the lease of the farm for another year from the expiration of his lease, which was to occur on March 1, 1934, and the defendant refused to lease the land to the plaintiff for another year, and shortly thereafter the plaintiff started this action.

It is quite evident from the testimony that the plaintiff did not make any claim of ownership after the execution of the deed until the filing of this suit, and all of his acts in keeping up the farm in good, husbandlike...