Scroggin v. Johnston

• Decision Date: 17 September 1895
• Citation: 64 N.W. 236,45 Neb. 714
• Parties: SCROGGIN v. JOHNSTON ET AL.
• Court: Nebraska Supreme Court

45 Neb. 714

64 N.W. 236

SCROGGIN

v.JOHNSTON ET AL.

Supreme Court of Nebraska.

Sept. 17, 1895.

Syllabus by the Court.

1. The allowing of a petition to be amended so as to change the form of the action is permissible where the identity of the cause of action is preserved.

2. Plaintiff brought an action in ejectment, and the defendant pleaded a contract entered into by plaintiff for the sale of the premises, and demanded affirmative equitable relief. The plaintiff was permitted to file an amended pleading, changing the form of the action from ejectment to that of foreclosure of the contract. Held not reversible error.

3. In a proper case, the court may permit a pleading to be amended to conform to the proof.

4. This court will not review the rulings of the trial court on the admission of testimony, unless the particular rulings are pointed out in the petition in error.

5. In a cause tried without a jury, the admission of incompetent or irrelevant testimony is not reversible error.

6. The finding of the trial court, based on sufficient evidence, will not be disturbed on appeal, unless manifestly wrong.

7. The facts constituting an estoppel in pais must be pleaded.

Error to district court, Nuckolls county; Morris, Judge.

Action of ejectment by H. B. Johnston against Charles H. Malsbury and Leonard K. Scroggin. To the judgment rendered, defendant Scroggin brings error. Affirmed.T. T. Beach and S. A. Searle, for plaintiff in error.

S. W. Christy, for defendants in error.

NORVAL, C. J.

An action of ejectment for the S. E. 1/4 of the N. W. 1/4, and the N. 1/2 of the S. W. 1/4, of section 33, township 3, range 6 W., in Nuckolls county, was instituted in the court below by Harriet B. Johnston against Charles H. Malsbury. Upon a trial to the court, without answer, judgment was rendered for the plaintiff, and upon the same day, at the request of the defendant, the judgment was set aside, and the statutory second trial was granted. Defendant was also given leave to answer, and, by consent of parties, L. K. Scroggin was made a party defendant.

The petition states that the plaintiff has the legal estate in the premises described, and is entitled to possession of them; that the defendant unlawfully withholds possession, and has received the rents and profits of said lands, and applied the same to his own use, amounting to the sum of $600. The answer of Scroggin contains a general denial, after which it sets up: That the plaintiff, formerly Harriet R. Spurck, on the 1st day of February, 1884, entered into a contract, in writing, whereby she agreed to convey said premises to Malsbury upon his paying the sum of $2,000, as follows: $500 cash, and the remaining $1,500 in five equal payments of $300 each, commencing on February 1, 1889, with 10 per cent. interest from date of contract; said $300 payments being evidenced alone by said contract, and for which no promissory notes were given. That Malsbury executed and delivered to plaintiff his two promissory notes, of $250 each, in settlement of the $500 cash payment. That said contract or article of agreement was duly acknowledged and recorded. That plaintiff on July 12, 1894, sold and assigned to J. W. Kline all her right, title, and interest in and to said contract, and the moneys described therein, and indorsed and delivered to said Kline the said two promissory notes. That subsequently said Kline, his wife joining with him, sold, assigned, and transferred said contract, and the moneys therein promised, to the defendant L. K. Scroggin, and said Kline indorsed and transferred said two notes to said Scroggin, to whom defendant Malsbury has since paid said notes, with the accrued interest thereon, as well as the interest on the five $300 payments; and that Malsbury has made no other or further payments thereon, for the reason plaintiff has notified him not to do so. The answer closes with a prayer that the court find the amount due Scroggin on said contract, together with the amounts to become due thereon, and decree the same shall be paid to him, and, upon such payments being made, the court direct said plaintiff to convey the premises to Malsbury, or, if the court shall find that plaintiff has no interest in the premises, that he be required to convey the same to Scroggin; and that plaintiff be enjoined from further prosecuting the suit; and for general relief. Malsbury's answer was substantially the same as the one filed by Scroggin, with the exception that it contained the further averments to the effect that he has complied with all the terms of the contract, up to the time of receiving notice from plaintiff not to pay any moneys upon the contract to either Kline or Scroggin, and that Malsbury is now, and always has been, ready to perform each and all the stipulations of said contract by him to be performed, and is now ready and willing to make payment in full of all moneys due and to become due under the contract. The defendant prayed the court to determine who has the right to the money, and to whom it shall be paid; that, upon making payment to such party as the court shall direct, plaintiff be required to convey the premises to said answering defendant. according to the terms of said contract; that plaintiff be restrained from further prosecuting this suit; and that the defendant receive such other and further relief as justice and equity demanded. For reply to the answers, plaintiff denies each averment therein contained not expressly admitted; admits the execution of the contract between herself and Malsbury, set forth in the answer; denies that she assigned or sold the contract to Kline, or any one else; denies that Scroggin is entitled to receive the money on said contract of purchase, or that he is entitled to a deed to said premises, or any part thereof; avers that the assignment from Kline and wife to Scroggin was made during the pendency of the suit, and that Malsbury has failed to make the payments and perform the covenants and conditions of said contract on his part, whereby said contract is forfeited. Subsequently, by leave of court, Malsbury, by an amendment to his answer, admits he is in possession of the lands, but says he entered into possession under the contract of purchase dated February 1, 1884, and avers that in good faith he has paid to Scroggin, on said contract, believing him to be the owner thereof, the following sums: $450 about February 1, 1885, and $425 about February 1, 1886; that on or about April 4, 1888, he executed and delivered to Scroggin a note for $411.44, secured by a chattel mortgage, of which amount $228.75 was to be applied in payment of interest on said contract of purchase; that defendant has made lasting and valuable improvements upon the land, of the value of $600. He prays the court to determine who is entitled to the purchase money, and for judgment against Scroggin for the several sums paid him, with interest, in case the court decrees the plaintiff is the owner of the contract, and entitled to receive the moneys therein called for.

Upon the issues thus formed by the several pleadings, the cause was tried to the court, and, at the close of the trial, plaintiff was permitted, over objection of counsel for plaintiff in error, to file an amended or supplemental petition to conform to the proofs, in which it is alleged, in substance, that Malsbury was in possession of the premises under the contract of purchase already mentioned, which instrument, it is alleged, was afterwards taken from plaintiff's possession, without her knowledge or consent, and without her receiving any value therefor from any person whomsoever; that through some source to her unknown, except by the testimony adduced on the trial, Scroggin obtained possession of said contract, and has collected the sums due thereon from Malsbury. up to February 2, 1887, without the knowledge or consent of plaintiff. The prayer is that an account be taken of the amount due plaintiff on said contract from Malsbury, and that a decree be rendered for a sale of the premises to satisfy said sum, unless the same is paid by a day fixed by the court, and for general equitable relief. The court below found that plaintiff never delivered the assignment of said contract to Kline, nor authorized any one else to do so for her, but that the same was by her then husband, wrongfully and fraudulently, abstracted from plaintiff's possession, and by him delivered to Kline, to pay a part of her husband's indebtedness to Scroggin, and for the payment of which said Kline was surety; that Malsbury has not paid to plaintiff any portion of the purchase money for the lands covered by said contract of sale, but has paid to Scroggin the sum of $1,104.19; that there is due from Malsbury to plaintiff on said contract $3,583.26 for principal and interest, and that there...