Thomas v. Thomas

• Decision Date: 06 May 1896
• Citation: 67 N.W. 182,48 Neb. 266
• Parties: THOMAS v. THOMAS et al.
• Court: Nebraska Supreme Court

48 Neb. 266

67 N.W. 182

THOMAS

v.THOMAS et al.^*

Supreme Court of Nebraska.

May 6, 1896.

Syllabus by the Court.

1. Where a party presenting a case to this court for review files a petition in error therein, he will be presumed to have elected to proceed by error, and not by appeal.

2. A parol agreement by a grantee to reconvey real estate to his grantor is within the statute of frauds, and does not create an express trust in such real estate, in favor of the grantor.

3. It is not necessary that the existence of a parol contract be denied in pleading, in order to render the defense of the statute of frauds available; but the pleader may admit the contract, and yet plead and insist upon the statute and its application thereto.

4. The failure to object, on a trial, to the introduction of evidence of a parol agreement to reconvey real estate, will not amount, under the practice of this state, to a waiver of the right to invoke the statute of frauds as to such agreement, when the statute has been property pleaded as a defense.

Error to district court, Washington county; Clarkson, Judge.

Action by John D. Thomas against John P. Thomas and another to cancel a deed. On the death of plaintiff and defendant Thomas, the action was revived in the name of Julia Thomas, administratrix of John D. Thomas, deceased, against A. S. Churchill, administrator of John P. Thomas, deceased. From a judgment for defendants, plaintiff appeals. Affirmed.Charles Ogden and Saunders, Macfarland & Dickey, for plaintiff in error.

Covell, Churchill & Winter, for defendants in error.

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, Neb. (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 he 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 intrust 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 proffering 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 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, of defendants, 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...