United States v. Sode

• Decision Date: 30 October 1950
• Docket Number: Civ. A. No. 78-50.
• Citation: 93 F. Supp. 398
• Parties: UNITED STATES v. SODE.
• Court: U.S. District Court — District of Nebraska

93 F. Supp. 398

UNITED STATES v. SODE.

Civ. A. No. 78-50.

United States District Court D. Nebraska, Omaha Division.

October 30, 1950.

John E. Deming, Asst. U. S. Atty., Omaha, Neb., for plaintiff.

W. A. Ehlers, Omaha, Neb., for defendant.

DONOHOE, Chief Judge.

On the first of April, 1946, Opal M. Thompson entered into a contract to sell certain real estate in Douglas County, Nebraska, to "James H. Sode and Edna Pearl Sode, husband and wife"; the vendor was to retain title until the purchase price was fully paid. It is well settled in Nebraska that an executory contract for the sale of land vests the equitable ownership in the purchaser and the seller retains title as legal security for the deferred installments of the purchase price. In re Wiley's Estate, 150 Neb. 898, 36 N.W.2d 483, opinion supplemented 151 Neb. 633, 38 N.W.2d 434; Jewett v. Black, 60 Neb. 173, 82 N.W. 375. It seems that in the situation under consideration the husband and wife obtained an equitable interest in the property mentioned. Whether the wife acquired such an interest that it could be considered part of her separate estate would depend to some extent on whether she contributed to the purchase price. Property coming to the wife by gift from the husband is excepted from the wife's separate estate. Sec. 42-201, R.S.Neb. 1943. Since there is no evidence either that she did or did not contribute to the purchase price we are forced to conclude that she took a separate interest by reason of the contract without delving into the problem of consideration. In the absence of evidence to the contrary it should be presumed that as co-purchaser she paid her share.

Subsequent to the contract to purchase, James H. Sode and Edna Pearl Sode took possession of the property and occupied it as their home. For reasons not material to the disposition of this case, James H. Sode was taken from his home and confined in the penitentiary for a period of two years. It is clear that this did not constitute a desertion of his wife which would enable her to sue and be sued as feme sole. The rule is clearly stated in Gregory v. Pierce, 4 Metc., Mass., 478, and followed by the Supreme Court of Nebraska in Peterson Brothers v. Gunnarson, 106 Neb. 29, 182 N.W. 505, 506: "The desertion of a wife by her husband, which will enable her to sue, and render her liable to be sued, as a feme sole, must be an absolute and complete desertion, by his continued absence from the commonwealth, and a voluntary separation from and abandonment of his wife, with an intent to renounce, de facto, the marital relation, and leave her to act as feme sole." (Emphasis added.) Since James H. Sode's departure was involuntary there is little merit to the contention that his wife did or could act as feme sole.

In any event, while James H. Sode was involuntarily detained, his wife, Edna Sode, conjointly with her son, Edward J. Marr, executed a National Housing Act Installment note, payable to the Micklin Home Improvement Company. The note was given in payment for combination storm windows for the home which she and her husband were purchasing from Opal M. Thompson. The face value of the note, $831.27, was to be paid in equal monthly installments of $23.10, each. Upon default, the note for valuable consideration, was assigned to the First National Bank of Omaha, Nebraska, and by it to the United States, the plaintiff in this action. Edna Pearl Sode is the only party named as defendant because the co-obligor on the note, Edward J. Marr, is a bankrupt.

Sometime after the defendant Edna Pearl Sode signed the note in question, Opal M. Thompson foreclosed the interest of Edna Pearl Sode and James H. Sode in the aforementioned real estate for failure to...