Thomas v. Wisner

• Citation: 66 Colo. 243,180 P. 744
• Decision Date: 05 May 1919
• Docket Number: 9359.
• Parties: THOMAS v. WISNER.
• Court: Colorado Supreme Court

180 P. 744

66 Colo. 243

THOMAS v. WISNER.

No. 9359.

Supreme Court of Colorado

May 5, 1919

Error to District Court, Logan County; H. P. Burke, Judge.

Action by Olive M. Thomas, formerly Olive M. House, against Fred A Wisner. There was a judgment in favor of defendant, and plaintiff brings error. Reversed.

H. E. Churchill and F. W. Clark, both of Greeley for plaintiff in error.

SCOTT J.

The complaint in this case by the plaintiff in error, alleged, in substance: That Charles A. Wisner, an unmarried man, entered as a government homestead the N.W. 1/4 of section 30 township 12 south of range 51, in Logan county, Colo., and continued to reside upon and improve the same until the time of his death, which occurred without his having made final proof thereon. That, at the time of the death of Charles A. Wisner, he left as his sole heirs at law two brothers, Edward H. Wisner and Fred A. Wisner, and two sisters, Elizabeth Luckett and Jennie M. Hunt. That, subsequent to the death of Charles A. Wisner, the heirs caused final proof on said homestead to be made, and received a government patent conveying said tract to the heirs of the entryman. That during his lifetime, and while residing on said homestead, Charles A. Wisner, the entryman, became indebted to his brother Edward H. Wisner in the sum of $412.50, which sum of money was used by the entryman in and about the improvement of the said homestead. That to evidence said indebtedness Charles A. Wisner executed and delivered to his brother Edward H. Wisner his promissory note in said sum and procured the plaintiff in error, Olive M. House, to sign said promissory note as joint maker or as surety.

Subsequent to the death of Charles A. Wisner, the entryman, Edward H. Wisner, the payee of said note, brought suit and recovered judgment against Olive M. House, the joint maker, now plaintiff in error, for the full amount of said note, interest, and costs.

On the day said judgment was rendered and prior to the satisfaction thereof by the plaintiff in error, the said Edward H. Wisner and the defendant Fred A. Wisner, brothers and heirs of Charles A. Wisner, jointly executed and delivered to the said Olive M. House their contract and agreement in writing as follows:

'This indenture, made and executed this 5th day of September, 1913, by and between Fred A. Wisner and Edward H. Wisner, parties of the first part, and Olive M. House, party of the second part, all of Lexington, Dawson county, Nebraska, witnesseth:

'That whereas, on this day there has been entered in the county court of Dawson county, Nebraska, judgment for the sum of $412.50 against the said Olive M. House in a cause wherein the said Edward H. Wisner was plaintiff and the said Olive M. House was defendant;

'And whereas, said action was brought and based upon a certain promissory note, dated November 9, 1909, payable to the order of said Edward H. Wisner and signed and executed by Charles A. Wisner, now deceased, and the said Olive M. House, and whereas the consideration of said note was for money loaned and advanced to the said Charles A. Wisner, now deceased, and by him used as to a part thereof to and about the improvement of a certain government homestead filed upon and occupied by the said Charles A. Wisner, now deceased, which said homestead entry and land is described as follows, to wit, the northwest quarter of section thirty, township twelve, range fifty-one, in Logan county, Colorado:

'Now, therefore, in consideration of the liability of said Olive M. House for the payment of said judgment and costs, the said first parties hereby agree with the said second party that they will reimburse and pay to the said Olive M. House out of such interest in the said land hereinbefore described as they may now or hereafter take or acquire in said land from the government of the United States as heirs at law of said Charles A. Wisner, deceased, and that they will and do hereby assign to the said Olive M. House so much of their said interests now or hereafter acquired from said land as such heirs as may be necessary to reimburse her for all moneys paid by her on account of said judgment and costs.

'It is further agreed by all of said parties that the validity or lien of said judgment shall not be impaired on account of anything in this agreement contained.

'Witness our hands on the date first above mentioned.

Edward H. Wisner.

'Fred A. Wisner.

'Witness: Niles E. Olsen.'

This instrument was at the time duly acknowledged and promptly recorded in the office of the county clerk and recorder of Logan county, Colo., all prior to making of the final homestead proof for said lands.

The complaint further recites that, since the issuance of government patent, the said...