Smith v. Smith

• Citation: 89 N.W. 799,2 Neb. [Unof.] 655
• Parties: SMITH v. SMITH ET AL.
• Decision Date: 19 March 1902
• Court: Supreme Court of Nebraska

2 Neb. [Unof.] 655

89 N.W. 799

SMITH

v.SMITH ET AL.

Supreme Court of Nebraska.

March 19, 1902.

Commissioners' opinion. Department No. 3. Appeal from district court, Boone county; Thompson, Judge.

“Not to be officially reported.”

Action by Jennie C. Smith against Darwin B. Smith and others. Judgment for plaintiff, and defendant Darwin B. Smith appeals. Affirmed.William A. D. Bord and A. E. Garten, for appellant.

J. A. Price, for appellee.

ALBERT, C.

This action was brought by Jennie C. Smith against Darwin B. Smith and others to foreclose a mortgage executed to her by the said Darwin B. Smith and his wife on certain real estate in Boone county. The defendants made default, and a decree of foreclosure was entered as prayed. Within the statutory time the defendant Darwin B. Smith filed a request for stay. Thereafter he filed a petition in the district court, asking that the plaintiff be restrained from proceeding to a sale under her decree of foreclosure, that said decree be set aside, and that he be permitted to defend. Issue was joined in this second case, and trial was had, which resulted in a decree whereby the decree in the foreclosure case was vacated, and leave granted the said defendant to appear in that case and make his defense. It was further provided in said decree that the two cases be consolidated, permitting the parties thereto to have an adjudication of such defenses as they might have. Afterward, in defense of the foreclosure case, the said defendant pleaded that the only consideration for the mortgage was the execution and delivery of a deed of conveyance by the plaintiff to him of an undivided one-half of the mortgaged premises; that her title thereto was based on a deed executed and delivered to her by her husband (now deceased) in his lifetime, who at the time of such conveyance was the owner of the same in fee simple; that the plaintiff's deed to the defendant contained the usual covenants of warranty of title; that, at the time of the conveyance to the plaintiff by her husband of the said premises, he was of unsound mind, and lacked sufficient mental capacity to execute such conveyance; that therefore at the time of the conveyance by the plaintiff to the defendant she had no title to the premises in question, and consequently there was a breach of her covenants of warranty. The mental capacity of plaintiff's grantor at the time of the execution of his deed to her appears to have been the only question of fact...