Staley v. Housel

• Decision Date: 01 July 1892
• Citation: 52 N.W. 888,35 Neb. 160
• Parties: STALEY v. HOUSEL ET AL.
• Court: Nebraska Supreme Court

35 Neb. 160

52 N.W. 888

STALEY

v.HOUSEL ET AL.

Supreme Court of Nebraska.

July 1, 1892.

Syllabus by the Court.

1. Under a general denial, in an action of ejectment the defendant may show that a deed in plaintiff's chain of title was procured by fraud and undue means.

2. The defendant, under such an answer, may prove by any legal evidence which he may have any fact which will defeat the plaintiff's cause of action.

3. Evidence examined, and held to sustain the finding that the deed from J. B. P. to K. L. C. was procured by fraud and undue means.

4. The instructions given and refused held properly given and refused.

Error to district court, Douglas county; WAKELEY, Judge.

Ejectment by Lorin A. Staley against Charles C. Housel and others. On a judgment for defendants, plaintiff brings error. Affirmed.Estabrook, Irvine & Clapp, for plaintiff in error.

John L. Webster, for defendants in error.

NORVAL, J.

This is an action in ejectment, brought by plaintiff in error to recover the possession of lot 8, in block 352, in the city of Omaha, and damages for withholding said premises from plaintiff. The petition is in the ordinary form. The defendants, for answer, deny that plaintiff is the legal owner of the lot, or entitled to the possession of the same, or that defendants wrongfully withheld possession thereof; aver that defendants and their grantors have had adverse possession of the lot under a claim of title for more than 10 years prior to the bringing of this action. The answer further alleges: “That, fourth, the defendants, for further answer, say that said plaintiff claims title under and by virtue of a deed made and executed to him by one Kate Graham, formerly Kate Christopher, and that said Kate Christopher obtained her title by conveyance from one Jesse B. Plummer in the year 1868; and these defendants further say that said deed of conveyance from said Plummer to said Christopher was without any consideration, and was obtained by said Kate Christopher from said Jesse B. Plummer by fraud and deception practiced upon him, the said Plummer, by her, the said Kate Christopher; and that said Kate Christopher was only to hold said title in trust for said Plummer, his assignees and devisees; and that said Kate Christopher was not to have, and did not claim to have, any legal title in or to said premises by virtue of said deed to her, and that the same was retained by her in fraud of the rights of said Plummer and of his assigns and devisees; that said Plummer, in his lifetime, made and executed a will, by which he devised said real estate to one Valentine, and that said Valentine afterwards by deed duly executed conveyed her interest in said property to these defendants.” The answer also sets up that the conveyance from Graham to plaintiff was without consideration, and was made for the purpose of enabling him to bring this suit; that defendants have paid taxes on the lot in the sum of $2,000, and made lasting improvements thereon of the value of $2,000. Each allegation of the answer is denied by the reply filed by plaintiff. From a verdict and judgment in favor of defendants, plaintiff prosecutes error.

The evidence discloses that on and for several years prior to the 10th day of February, 1868, the lot in litigation was owned by one Jesse B. Plummer, he having purchased the same at a sale under a decree of foreclosure as the property of one C. J. Christopher, the former husband of Kate L Christopher, and the immediate grantor of plaintiff. Prior to the sale, Christopher disappeared, and is supposed to be dead. At the time Plummer bid in the property Kate Christopher was residing thereon, and for many years afterwards she and Plummer lived together upon the premises, occupying the same house. On February 10, 1868, said Jesse B. Plummer conveyed the property in dispute by deed of general warranty to said Kate L. Christopher, reserving to the grantor a life estate, which deed was duly recorded on the same day. On November 3, 1869, said Kate L. Christopher married one George Graham. Soon thereafter they left Omaha, leaving Plummer in possession of the premises, and have not since resided there. The lot was conveyed by deed of quitclaim on the 17th day of May, 1884, by said Kate L. Graham to the plaintiff, Lorin A. Staley, which deed was filed for record June 6, 1884. It further appears from the record that Plummer died in 1887, leaving a last will and testament bearing date the 20th day of February, 1873, by which all his property, real as well as personal, was devised to his daughter, Ellen Olivar Valentine, which will has been duly admitted to probate. It is contended by defendants that the conveyance from Plummer to Kate L. Christopher was without consideration, and that the same was procured by fraud and undue influence; therefore the lot, upon the death of Plummer, passed under the will to his said daughter. The defendants, for the purpose of establishing title to the lot in themselves, introduced in evidence a deed to said lot from said Ellen O. Valentine and her husband, Joseph T. Valentine, to the defendants Charles C. Housel and Reuben Allen, bearing date December 8, 1883; a deed from said Reuben Allen and wife to the defendant Everett G. Ballou, dated March 31, 1884, for an undivided one third of the lot; also two tax deeds from the treasurer of Douglas county to the defendant Housel; and also a deed from the treasurer of Douglas county to the defendants Housel and Allen. The defense of adverse possession is not sustained by the proofs. In fact, it is not relied upon in this court, nor was that issue submitted to the jury in the court below. The tax deeds above referred to were void on their face, and were therefore insufficient to establish title in the defendants. Nothing is now claimed by counsel for defendants for these treasurer's deeds, and they will not be further considered.

It will be observed that plaintiff has shown a complete chain of title to the premises in himself, and therefore was entitled to recover, unless the deed from Plummer to plaintiff's grantor, Kate L. Christopher, was obtained by fraud or undue influence. Whether it was thus procured is one of the principal questions presented by the record. Before entering upon this investigation, we will pause to consider whether the evidence produced by the defendants to show fraud was admissible under the issues raised by the pleading. An objection to its introduction was made on the trial by the plaintiff, which was overruled by the court. The evidence was not admissible under the fourth paragraph of the answer, which we have copied above. The allegation therein of fraud is a mere conclusion. No fact constituting the fraud is averred. A party charging fraud and undue influence must plead the facts. A mere allegation of their existence is not sufficient. Arnold v. Baker, 6 Neb. 134; Clark v Dayton, Id. 192; Aultman v. Steinan, 8 Neb. 113. The evidence tending to show that the deed from Plummer to Christopher was obtained by fraud and undue influence was, however, admissible under the general denial of the answer. The question was squarely presented and decided in Franklin v. Kelley, 2 Neb. 79. It was there held that the defendant in an action of ejectment may show that a deed in plaintiff's chain of title was procured by fraud, without specially pleading the fraud in the answer. Chief Justice MASON, in delivering the opinion of the court, says: “In whatever aspect the offer of the defendants is regarded, it is within the rule that fraud may be shown in ejectment to avoid a deed; and the refusal of the court to hear the evidence was error. One other matter only remains to be noticed. It is insisted that this matter should have been specially pleaded. It is undoubtedly true that the theory of the system of pleading under the Code generally is that the facts necessary to constitute a cause of action or defense shall be stated. But in respect of actions for the recovery of real property another rule has been adopted. Why this is so is not very clear. It may be because, as two trials, of course, are given in that class of actions, the parties are supposed to learn, from what is shown on the first, what will be the issue on the final trial. But, whatever the reason, it is apparent that in this class of actions, as also in cases of replevin, the facts need not be stated. That being the rule of pleading contained in the Code, we have only to enforce it here.” The decision has never been directly overruled, nor its soundness questioned, but the same principle was recognized and applied by this court in Dale v. Hunneman, 12 Neb. 221, 10 N. W. Rep. 711. That was an action of ejectment, the answer being a general denial. MAXWELL, C. J., in the opinion, says: “Where the facts stated in the petition are denied, the plaintiff, to be entitled to recover, must prove that he possesses a legal estate in the premises, and is entitled to the possession of the same. If the defendant possesses an equity which negatives the plaintiff's right of possession, such equity may be proved under a general denial, as it is a mere defense to the action. But if the defendant seek affirmative relief,--such as to enforce a contract which does not give him the right of possession, but does give him a right to demand a specific execution of the contract by the plaintiff, upon which the right to continue in possession of the premises depends,--he must plead the facts entitling him to such relief; and his answer must contain all the facts necessary to entitle him to such relief.” Numerous cases are cited by defendants' counsel from the courts of other states which sustain the position for which they contend, among others: Stout v. Hyatt, 13 Kan. 242; Clayton v. School Dist., 20 Kan. 256; Wicks v. Smith, 18 Kan. 508; Armstrong v. Brownfield, 32 Kan. 116, 4 Pac. Rep. 185;Jones v. Cohen, 82 N. C. 75;Lain v. Shepardson, 23 Wis. 224;Mather v. Hutchinson, 25 Wis. 27;...