Schuster v. Schuster
| Decision Date | 13 April 1909 |
| Docket Number | 15,645 |
| Citation | 120 N.W. 948,84 Neb. 98 |
| Parties | HERMAN SCHUSTER, APPELLEE, v. ANTON SCHUSTER ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Polk county: BENJAMIN F. GOOD JUDGE. Affirmed in part and reversed in part.
Judgment reversed and remanded in part, with directions and affirmed in part.
J. J Sullivan and J. G. Reeder, for appellants.
W. M Cornelius, contra.
The Schuster family came to the United States from Austria in 1877, arriving in Platte county, Nebraska, in midsummer of that year. The members of the family involved in this action consist of the four sons, Anton, Julius, Louis and Herman, who were all minors when they came to America; Anton, the eldest, then being about 15 years of age. After a brief residence in Columbus the family, consisting of the parents, the four sons, and one or more minor children who are not involved in this suit, moved onto a rented farm in Platte county upon which they resided and farmed until 1885 or 1886, when the father of the household and the boys together purchased a farm in Polk county, taking the title in the father's name, and upon which for many years was maintained the Schuster family home, final payment of the purchase price being made about the year 1895 from the proceeds of the farm and the joint earnings of the father and his boys. The testimony shows that, by the industry and united effort of the father and his boys, both before and for a period long after the latter attained their majority, considerable property, both real and personal, besides the home farm, was accumulated by them and held jointly.
This action was brought in Polk county by Herman Schuster, plaintiff and appellee, the youngest of the brothers, and who is hereinafter called the plaintiff, for an accounting of rents and profits and for a partition of 320 acres of farm land in Polk county, purchased, as he alleges, and paid for jointly by him and his brothers, the record title thereof standing in the name of himself and the defendants.
In June, 1899, the plaintiff, who testifies he was then 27 years of age, went to the city of Columbus to engage in the business of manufacturing scales, and it appears the father and the sons were then the owners of three quarter sections of land, one quarter section being the home farm with the title in the name of the father, and a half section with the title in the names of the four sons jointly, and in which latter tract the father has no claim or interest, about $ 3,600 in cash, and a considerable amount of personal property, all of the land having been bought and paid for by the joint earnings of the family and from the sale of the products of the farms. The ownership of the half section of land standing in the names of the Schuster brothers, parties hereto, and the right of plaintiff to participate in the rents and profits arising therefrom are the questions in dispute between the plaintiff and the defendants.
In his petition the plaintiff alleges, in substance, that himself and the defendants, Anton, Julius and Louis Schuster, who are hereinafter called the defendants, "now are, and for more than five years have been, seized in fee and tenants in common each of the undivided fourth of the S.E.1/4 of section 11 and the N.W.1/4 of section 13, all in township 15, range 3 W., in Polk county, Nebraska"; that defendants have exclusively used and occupied said premises for 8 years; that the rental value of plaintiff's interest therein is $ 160 a year and is unpaid.
The defendants filed a joint answer, denying generally the allegations of the petition, and alleging that on May 26, 1890, the defendants Anton and Julius Schuster purchased and paid for said section 13; that "title to said premises * * * was taken in the name of A., J., L. & H. Schuster Bros."; that in February, 1893, defendants Anton and Julius Schuster purchased said section 11 for $ 4,400, and that "title was taken in the name of defendants Anton Schuster, Julius Schuster, and Louis Schuster and plaintiff Herman Schuster," in pursuance of an agreement with plaintiff, which reads: ; that it was the understanding between the parties that plaintiff would assist in the work and management of the land, so that by united effort they might accumulate property and build up a large and profitable business; that the written contract and oral agreement were made "for the purpose of encouraging said Herman Schuster in said work, and upon the express promise of said Herman Schuster as above set forth, and, relying thereon, " that the defendants Anton and Julius Schuster consented that legal title to an undivided one-fourth part of said premises be taken in the name of plaintiff; that plaintiff has always failed "to perform his part of said contract, and has never contributed one cent toward the payment of the mortgage assumed as a part of the purchase price of one of the parcels of land above described"; that plaintiff engaged in a separate scale manufacturing business on money supplied by defendants, and retained the proceeds of the business.
Plaintiff's reply denied all the material allegations of new matter in the answer, admitted title to the land was taken in the name of plaintiff and defendants, alleges he was a minor when the written contract was entered into, and that he was never bound thereby.
Upon the issues thus presented, the district court, upon trial, rendered judgment of partition in favor of plaintiff and against the defendants, finding and decreeing that plaintiff was an owner of an undivided one-fourth part of the premises involved herein. Upon the question of rents and profits, judgment was rendered against the plaintiff and in favor of the defendants. The usual exceptions were taken by each of the parties, and the cause is brought here for review.
After a careful examination of the entire record, we are convinced the proofs sustain the material allegations of plaintiff's petition. Anton vigorously contends the 320 acres in dispute were bought and paid for without any contribution of either time or money from the plaintiff, but two of his own letters, one under date of June 1, 1906, and one under date of June 16, 1906, written by him to Herman, utterly refute his contention on this vital point. In the letters he corroborates the testimony of plaintiff in almost every essential particular. The course of Anton's testimony is so devious that he is met at almost every material point by contradictory statements formerly made by himself in his letters to Herman.
The plaintiff testified that a settlement was had between himself and his father and his brothers concerning the cash on hand in the common family fund just before his departure for Columbus in 1899, and that the money then apportioned among them was derived in large part from the sale of farm products from the father's 160 acres and from the 320 acres owned by the four boys. He testified the total amount of cash then on hand was approximately $ 3,600, and that it was divided into five parts, the father and each of the boys receiving approximately $ 730. This was denied by Anton and the other defendants. They admitted that money in about the sum named by Herman in his testimony was handed to him about the time of his departure for Columbus, but that it was not given as a settlement or a distribution of the cash on hand but as a gift from the family. On this point the testimony of Anton and his codefendants is met and overcome by Anton's letter of June 1, 1906, wherein he says to Herman, among other things: ...
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