Uppfalt v. Woreman

• Decision Date: 16 September 1890
• Citation: 46 N.W. 419,30 Neb. 189
• Parties: UPPFALT v. WOREMAN ET AL.
• Court: Nebraska Supreme Court

30 Neb. 189

46 N.W. 419

UPPFALT

v.WOREMAN ET AL.

Supreme Court of Nebraska.

Sept. 16, 1890.

Syllabus by the Court.

A counter claim based on a contract of purchase being in the nature of a cross-action, the defendant is not compelled to interpose it in an action of ejectment as a defense. If he so elect, he may bring a separate action to enforce the contract, subject, however, to a liability to pay the costs in the second case.

Appeal from district court, Cuming county; POWERS, Judge.T. M. Franse, for appellants.

Bruner & Lewis, for appellees.

MAXWELL, J.

This is an action to enforce specific performance of a contract. The petition is very long, and need not be specially referred to. The principal defense relied upon is a prior adjudication which is set forth in the answer as follows: “The defendants further allege that on or about the 29th day of September, 1883, the defendant John Nelson commenced in the district court in and for Cuming county, Neb., a court having jurisdiction of the parties and of the subject-matter of the action, a suit in ejectment against the plaintiff, Gust Uppfalt, to recover possession of the land described in plaintiff's petition herein, and that said suit was based upon the same title and claim of title set forth in the petition herein as existing in the defendants Scranton, Olson, and Nelson; that said Uppfalt appeared in said action, and based his defense upon the same contract and equitable rights thereunder set up by him as the basis of this action; that such proceedings were had in that case, that final judgment was in due time, and before the commencement of this action, rendered therein, awarding the possession of said premises to defendant Nelson, plaintiff in said action. And defendants allege and ask this court to adjudge that said judgment so rendered is and constitutes a bar to this action, and that all the questions involved herein are res adjudicatæ in the suit so prosecuted to final judgment; that in said suit in ejectment the defendant therein, plaintiff in this action, on or about May 25, 1886, made application to the said district court to be compensated for the same improvements, and upon the same premises, as are set forth in the petition in this suit; and that said application was heard by said court, and on the 27th of July, 1886, final judgment rendered thereon, denying said application; that said application was based upon the same equities as are set forth in the petition herein, and made the basis of this action. And defendants allege and ask this court to decree that said judgment rendered upon said application estops plaintiff from prosecuting this action, and is in law a bar thereto; that defendant Olson held a contract of purchase of the premises in question, prior to the contract of plaintiff; that said contract of purchase was from defendant Scranton, and was a legal and valid contract, and was duly filed for record in the clerk's office of Cuming county, Neb., on the 23d day of November, 1881, prior to the contract of plaintiff, which was made December 22, 1882, and that plaintiff had notice of the same when he took his said contract, and at all times after February 12, 1883, had notice that defendant Olson held a warranty deed of said premises; that the defendant Scranton is amply responsible financially, and that, if plaintiff has any claim or right under his contract with said Scranton, said plaintiff has an ample and adequate remedy at law to enforce the same.”

On the trial of the cause the court found as follows: “(1) That plaintiff, on the 7th day of December, 1880, bought of William W. Scranton, executor of the last will of Joseph U. Scranton, deceased, the owner thereof, the following property, to-wit, the N. 1/2 of the S. W. 1/4 of section 23, township 22, range 7 east, in Cuming county, Neb., the premises in controversy in this action, for the agreed price of $480, by an agreement in writing of that date duly executed by the said William W. Scranton and said plaintiff; (2) that plaintiff paid to said Scranton on said contract the sum of $80 on December 1, 1880, and $24 on December 1, 1881, and on December 1, 1882, the sum of $124, and also the taxes assessed on said land for the years ______, amounting to $11, and took possession of the same in June, 1882, under said contract, and retained such possession until June, 1886; (3) that plaintiff has made improvements in the land since the execution of the contract, of the value of $250; (4) that said premises were unoccupied and unimproved at the time of such purchase by plaintiff; (5) that on the 22d day of December, 1882, the plaintiff had his said contract duly acknowledged and recorded in the numerical index of lands in said county; (6) that at the time of making the contract the plaintiff had no notice of any...