Thomas v. Churchill

• Decision Date: 06 May 1896
• Docket Number: 6270
• Parties: JULIA THOMAS, ADMINISTRATRIX, v. A. S. CHURCHILL, ADMINISTRATOR
• Court: Nebraska Supreme Court

67 N.W. 182

48 Neb. 266

JULIA THOMAS, ADMINISTRATRIX, v. A. S. CHURCHILL, ADMINISTRATOR

No. 6270

Supreme Court of Nebraska

May 6, 1896

ERROR from the district court of Washington county. Tried below before SCOTT, J.

AFFIRMED.

Charles Ogden, for plaintiff in error.

A. S Churchill, contra.

OPINION

HARRISON, J.

The original plaintiff in this cause, John D. Thomas, and one of the defendants, John P. Thomas, have died during its pendency, and the action has been revived in the name of Julia Thomas, administratrix of the estate of the deceased plaintiff, and against the administrator of the deceased defendant. A petition was filed March 7, 1891, and an amended petition May 25, 1891, in which it was stated, in substance, that the plaintiff was, and for many years had been, the owner of 200 acres of land in Washington county Nebraska, giving a specific description of the land, which we omit; that he had been a resident of this state during the year 1856, and of Washington county until about 1872, when he removed to Omaha; that about the year 1875 the plaintiff was induced by fraud, misrepresentation, and deception to marry with one Sylvia Preston, and soon after such marriage became convinced that the woman had formed such marriage relation with him for the purpose of assisting her in a fraudulent purpose to obtain as much of his money and property as possible; that in the course of numerous litigations with her, or her relations, friends, and accomplices as opponents, he had lost much money and a large and valuable piece of land, and that he had been unsuccessful in a number of other lawsuits in which he had been a participant, and had become imbued with the idea that he could not obtain justice, and that he would lose or have all the remainder of the property which he owned taken from him, "and said nephew, John P. Thomas, having personal knowledge of many of the plaintiff's said annoyances and experiences in the courts of Douglas county and citizens above referred to of Douglas county, and being a young unmarried man, poor but honest, as the plaintiff then believed, professed great sympathy for the plaintiff in his above mentioned troubles, and proffered his assistance as a trusted relative in helping the plaintiff to place his property, then remaining, in such shape as that no more of it would be lost to the plaintiff, and so that plaintiff, at any time he designed, might have it returned to him; and the plaintiff, believing in the honesty and integrity of his said nephew, the defendant John P. Thomas, and believing that such offer was made in good faith and for the benefit of this plaintiff, and to enable the plaintiff to save to himself said property, the plaintiff was induced to and did accept the proffered assistance of his said nephew in that behalf, which proffered assistance, as plaintiff afterward learned, was in bad faith, and his statements of sympathy for the plaintiff and of his desire to assist said plaintiff to save said property for his own use and benefit were false and made with the fraudulent design of inducing plaintiff to entrust to the defendant John P. Thomas the title to said property, that he, John P. Thomas, might thus be enabled to defraud plaintiff out of the same, and without any intention on the part of him, the said John P. Thomas, to reconvey the same to plaintiff; that on the 5th day of February, 1884, the plaintiff, confiding in the said John P. Thomas, and believing that he was sincere in proffered assistance as above stated, and with the verbal understanding and promise of the said John P. Thomas that he would at any time thereafter, at the request of the plaintiff, reconvey to the plaintiff any and all of the said above described real estate, and the plaintiff, believing it was a matter of prudence for him, plaintiff, so to do, by deed of the date last aforesaid conveyed to said defendant John P. Thomas all of the said above described real estate, to be held, as above stated, in trust, for the sole benefit and use of this plaintiff; that although said deed recited a consideration, yet, in truth and in fact, there was no consideration therefor, and no money was paid, or intended to be paid, in consideration for said deed, and no consideration has since been paid by said John P. Thomas, or any one for him, for said deed; and plaintiff avers that the promise by which the plaintiff was induced to make the said deed to the defendant John P. Thomas, as above stated, was in bad faith and false, and made with the intent on his part to deceive and defraud this plaintiff thereby; that at the date of said conveyance by plaintiff to said defendant John P. Thomas the said defendant was a poor man and without any means with which to pay any consideration for such transfer; that such deed was not made as a gift nor as an advancement to said John P. Thomas, but was made and accepted for the sole benefit of plaintiff, as above stated; that said deed was recorded in the county clerk's office of Washington county, Nebraska, on the 16th day of February, 1884, at page 345 of book 19 of deeds; that plaintiff, ever since the making of said deed, has been in possession of all of said real estate, has paid all taxes and assessments thereon, has collected the rents thereof, and all done with full knowledge of the said defendant John P. Thomas, and without any protest on his part against the same or any claim on his part as to any personal interest therein, until about the 21st day of February, 1891, upon which date the said defendant John P. Thomas undertook to assert his title to said property and interfered with the tenants placed on said land by the plaintiff by notifying said tenants not to pay rent to this plaintiff; that John P. Thomas, in further pursuance of his fraudulent design, on the 21st day of February, 1891, conveyed, by deed of quitclaim, the lands described to one Henry Webber, for an alleged consideration of $ 6,000; that there was in fact no consideration passed from Webber to John P. Thomas, and that, as a part of the scheme, Webber, of date February 24, 1891, executed and delivered to John P. Thomas a mortgage on the lands in question, purporting to secure the payment of $ 5,200, which was duly recorded, and that the same was in truth entirely without consideration and a sham. The prayer of the petition was for the declaration of a trust in favor of plaintiff in the premises described therein, and the annulment and cancellation of all and singular the various instruments of conveyance referred to in the petition; "that the plaintiff be reinvested of his former title in and to all of the hereinbefore described real estate." It was also asked that Webber be enjoined from transferring the property; that John P. Thomas be enjoined from disposing of the mortgage executed by Webber or the notes, the payment of which it purported to secure, and that both defendants be enjoined from in any manner interfering with the tenants of plaintiff then occupying the land, and for such other, further, and different relief as justice and equity would entitle him to receive. John P. Thomas, defendant, answered and admitted that he was the plaintiff's nephew, and that on the 5th of February, 1884, the plaintiff conveyed to him the real estate mentioned in the petition, and stated that the conveyance was effected by warranty deed; denied that the transfer was without consideration and averred that it was for a good and valuable consideration, and not in trust, but for the use of defendant, his heirs and assigns, and as to the verbal promise to reconvey the land to plaintiff, as alleged in the petition, pleaded that it was void and of no effect under the statute of frauds; and further, that the plaintiff was estopped by the covenants and recitals in the warranty deed, by which he conveyed the real estate to defendant, from averring or proving any trust relation as arising from the transaction, in contradiction of the terms of the instrument, and estopped from claiming any right or interest in the premises. It was admitted that plaintiff had paid the taxes assessed against the land, but denied that the plaintiff had been in possession of the premises, either himself, personally, or by tenants; and further answering the fifth paragraph, it was pleaded that on or about the date the land was conveyed by plaintiff to the answering defendant, the defendant executed and delivered to plaintiff a power of attorney, by which the plaintiff was authorized to lease the premises and collect the rents thereof, and that, acting under and by virtue of the authority thus granted, the plaintiff leased the land, collected the rent moneys, and with it, or a portion of it, paid the taxes. It was further answered by this defendant: "The defendant admits that on the 21st day of February, 1891, he conveyed the premises to Henry Webber for a consideration of $ 6,000, and that Webber executed and delivered to the answering defendant a mortgage to secure the payment of the sum of $ 5,200, a part of the purchase price of the land." There were some other matters pleaded in this answer, but we need not notice them here. The answer of Webber was very similar in the main to that of his co-defendant, which we have just outlined, and admitted the conveyance of the land by John P. Thomas and the execution of the mortgage for the unpaid portion of the purchase price, and that Webber had notified the tenants who were occupying and using the land not to pay rent to the plaintiff, and averred that the purchase of the land by this defendant was for a good and valuable consideration, and without any knowledge on his part of any right, or claim of right, of the plaintiff in or to the premises. The issues were tried to a judge, who resolved them in favor of...