Stevens v. Sibbett

• Decision Date: 24 March 1891
• Citation: 48 N.W. 465,31 Neb. 612
• Parties: C. A. STEVENS v. SIBBETT ET AL
• Court: Nebraska Supreme Court

48 N.W. 465

31 Neb. 612

C. A. STEVENS v. SIBBETT ET AL

Supreme Court of Nebraska

March 24, 1891

ERROR to the district court for Butler county. Tried below before POST, J.

REVERSED AND REMANDED.

A Hardy, and S. H. Steele, for plaintiff in error, cited, as to waiver by pleading over and appeal: Pottinger v Garrison, 3 Neb. 223; Farrar v. Triplett, 7 Id., 237; Mulhollan v. Scoggin, 8 Id., 202; Irwin v. Nuckolls, 3 Id., 441; People v. R Co., 39 HOW Pr. [N. Y.], 51; Goodrich v. Omaha, 11 Neb. 204. As to amendment: Mills v. Miller, 3 Neb. 87; Hammond v. R. Co., 49 Iowa 450; Hays v. Turner, 23 Id., 214; Seevers v. Hamilton, 11 Id., 66; Williams v. Miller, 10 Id., 344; Busch v. Hagenrick, 10 Neb. 415.

Marquett, Deweese & Hall, contra, cited, contending that a new cause of action could not be set up by amendment: Shinners v. Brill, 38 Wis. 648; Clarke v. R. Co., 5 Neb. 318-19; Frickett v. Cohu, 1 N.Y.S. 436; State v. Turner, 96 N. C., 416; Norris v. Pollard, 75 Ga. 358; Pfeiffer v. Hunt, Id., 513; Sturges v. Botts, 24 Mo. App., 282; Hammond v. Place, Harr. [Mich.], 438; Givens v. Wheeler, 6 Col., 149; Woodruff v. Dickie, 5 Rob. [N. Y.], 620; Dows v. Green, 3 HOW Pr. [N. Y.], 377; Sheldon v. Adams, 27 Id., 182; Lottman v. Barnett, 62 Mo. 170; Lackner v. Turnbull, 7 Wis. 95; Newton v. Allis, 16 Id., 210; Sweet v. Mitchell, 15 Id., 709; Larkin v. Noonan, 19 Id., 93; Stevens v. Brooks, 23 Id., 199; Board Supervisors v. Decker, 34 Id., 380.

OPINION

MAXWELL, J.

On the 15th of April, 1885, the plaintiff filed a petition in the district court of Butler county, in which he alleged:

"That on the 4th day of September, A. D. 1882 at Butler Co., Neb the said defendant Thomas Fox, Sr., made, executed, and delivered to the defendant R. M. Sibbett, a bond for a deed for 520 acres of land, situate, lying and being in Butler Co., Neb. described as follows, to-wit: The S. E. 1/4 of section 20; the E. 1/2 of the S.W. 1/4 of section 20; the S.W. 1/4 of section 16; the S. 1/2 of the N. W. 1/4 of section 16, and the S.W. 1/4 of the S. E. 1/4 of section 16; all in town. 14 in range 3 east, and ostensibly sold said lands to the said R. M. Sibbett upon the terms herein stated. Said bond was duly filed for record in the office of the county clerk of said Butler Co., on the 7th day of April, A. D. 1885.

"That said Fox, when he made and delivered said bond, well knew that the defendant Sibbett was insolvent and irresponsible, and that the said Fox executed said bond for the purpose and with the understanding that said Sibbett should sell said lands or a large portion thereof, and out of the proceeds of such sale pay said Fox therefor, and with this understanding and agreement by and between the parties to said bond, they, for the purpose of having said Fox execute a deed or deeds to such portions of said land as said Sibbett should sell, by mutual agreement did not put said bond upon record as notice of their transactions, nor was the same put upon record until about the time of the commencement of this action, when plaintiff obtained one of the duplicates of said bond and put the same upon record.

"That for the purpose aforesaid, and with the agreement and understanding aforesaid said Fox executed and delivered said bond to said Sibbett upon the payment of the sum of $ 220 and no more, and plaintiff avers that in and by the transactions aforesaid it was the intent and purpose of said Fox to make said Sibbett his agent to sell said lands for him, and he (said Fox) to deed the land when sold, and this plaintiff avers that said Sibbett was the agent of said Fox for the purpose as aforesaid.

"2d. That on the 8th day of September, A. D. 1882, the defendant R. M. Sibbett, with the full knowledge and consent of the defendant Thomas Fox, Sr., sold a part of said land, to-wit, the S.W. 1/4 of section 16, the S. 1/2 of the N. W. 1/4 of section 16, and the S.W. 1/4 of the S. E. 1/4 of section 16, all in town 14, in range 3 east, to this plaintiff, made and executed and delivered to this plaintiff a bond for a deed for said land for the price and upon the terms named in said last mentioned bond. That said bond was duly filed for record and recorded in the office of the county clerk of said Butler county, Nebr., on the first day of December, A. D. 1882, in book 13 of deeds, on page 464.

"3d. That at the same time said Sibbett executed said bond to this plaintiff as aforesaid, the said Sibbett, with the full knowledge and consent of, and in the presence of the defendant Thomas Fox, Sr., made, executed, and delivered to this plaintiff a written lease for the term of five years of the following real estate, to-wit, the S. E. 1/4 of section 20, and the E. 1/2 of the S.W. 1/4 of section 20, all in town 14 north, of range 3 east, in Butler county, Neb. the same being a part of the land described in bond from Fox to Sibbett aforesaid, and actually occupied and resided upon by said Thomas Fox, Sr., and the said Thomas Fox, Sr., then and at the time of the making said lease by said Sibbett to this plaintiff, agreed with and promised this plaintiff that he, the said Fox, would give this plaintiff possession of the said leased premises and the premises conveyed to plaintiff by the bond of said Sibbett by the 1st day of March, 1883, and the said agreement by the said Thomas Fox, Sr., was a part of the consideration for which this plaintiff paid the sum of $ 1,200.00 as hereinafter stated.

"4th. That at the time of his purchase and leasing of said lands from said R. M. Sibbett, and as an inducement thereto, the said R. M. Sibbett represented to this plaintiff in the presence and hearing of the defendant Thomas Fox, Sr., that he, Sibbett, was the absolute owner of and had good right to sell and convey all the lands mentioned in 'Exhibit A,' hereto attached and before referred to, or to lease the same. And this plaintiff, relying on said representations, and believing them to be true was induced thereby to purchase and take a bond for a deed from said Sibbett for the land described in 'Exhibit B' hereto attached, and to lease the other land heretofore mentioned, and to pay to the said Sibbett as the cash payment on the land purchased the sum of $ 1,200.00, and agreed to pay the balance of the purchase price of said premises in the manner stated, and at the terms mentioned in said bond for a deed, of all of which facts and circumstances the defendant Thomas Fox, Sr., had full knowledge at and before the time of the payment of the said $ 1,200.00; that said Fox was present and knew the terms and conditions of the bond from Sibbett to plaintiff before and when the same was executed, and knew that plaintiff had agreed to purchase said lands, and to pay $ 1,200.00 as a cash payment thereon, and knew that he did pay thereon in cash the sum of $ 1,200.00, and acquiesced therein and consented thereto.

"5th. That forty acres of the land described in both of the bonds hereinbefore mentioned, to-wit, the S.W. 1/4 of the S. E. 1/4 of section 16, did not at the time of the making of said bonds belong to either of the defendants, but did in fact belong to the state of Nebraska, being school land and still unsold.

"6th. That 80 acres of the land mentioned and described in both of said bonds, to-wit, the S. 1/2 of the N. W. 1/4 of section 16, at the time of the making of said bonds and now belongs to and is the property of Thomas Fox, Jr.; but plaintiff alleges that at the time of the transaction aforesaid the said Thomas Fox, Sr., was the agent of the defendant Thomas Fox, Jr., and was duly authorized to sell and convey the said premises, and that the said Thomas Fox, Jr., has fully satisfied and confirmed all of the acts of his said agent in the premises, and that he had full knowledge of all the dealings and transactions aforesaid between said Thomas Fox, Sr., and the plaintiff herein, and by and between said Thomas Fox, Sr., and the defendant R. M. Sibbett.

"7th. That the defendant Thomas Fox, Sr., was the owner of all of the land described in both of the bonds heretofore mentioned, except the 80 acres belonging to Thomas Fox, Jr., and the 40 acres belonging to the state of Nebraska, and had good right and lawful authority to sell and convey the same.

"8th. That on the 1st day of March, 1883, he duly tendered to the defendant R. M. Sibbett and Thomas Fox, Sr., and offered to pay them, or either of them, the sum of $ 186, being the only amount then or now due by the terms of the said bond made and executed to this plaintiff, and offered to execute the note and mortgage provided for in said bond, and requested them and each of them to convey said premises, to plaintiff, according to the terms of the bond aforesaid, but the defendant Thomas Fox, Sr., refused to convey said premises and refused to give possession of said premises and this plaintiff then learned that the defendant R. M. Sibbett had no title to said lands to convey, and plaintiff alleges that he has at all times been ready to comply with his agreement and bond, and to pay all sums due and perform all conditions thereof, and he now brings the whole amount due upon said bond, to-wit, $ , into court and offers the same to said defendants, and offers to make his mortgage and note securing the money not yet due as provided in said agreement or bond, and offers them to defendant upon their executing and delivering to him a sufficient conveyance of said premises according to the terms of said bond, and that defendant Thomas Fox, Sr., has had the use of said land ever since the making of said contracts, and that said use was worth $ 2,000.

"Therefore the plaintiff prays that said defendants be required to receive the money due upon said bond made by defendant Sibbett to this plaintiff, and to execute and deliver to this...