Wanser v. Lucas

• Decision Date: 16 April 1895
• Citation: 44 Neb. 759,62 N.W. 1108
• Parties: WANSER ET AL. v. LUCAS.
• Court: Nebraska Supreme Court

44 Neb. 759

62 N.W. 1108

WANSER ET AL.

v.LUCAS.

Supreme Court of Nebraska.

April 16, 1895.

Syllabus by the Court.

1. A conveyance of real property from a husband directly to his wife, although void at common law, may be sustained if resting upon equitable grounds, such as a sufficient money consideration.

2. Evidence examined, and the advancement of money to the husband by the wife out of her separate estate held a sufficient consideration for the conveyance to her by the former of all of his property, real and personal.

3. The defendant in an action of ejectment may interpose any defense, legal or equitable, the effect of which is to negative the plaintiff's right of possession.

Error to district court, Pierce county; Norris, Judge.

Action by Mary L. Wanser and others against Robert Lucas to recover land. Defendant had judgment, and plaintiffs bring error. Affirmed.Wigton & Whitham and O. J. Frost, for plaintiffs in error.

H. C. Brome, for defendant in error.

POST, J.

This is a petition in error, and presents for review a judgment of the district court for Pierce county. The essential facts, as they appear from the pleadings and proofs, are as follows: On the 29th day of September, 1876, R. S. Lucas, late of said county, conveyed by warranty deed to his wife, Ada W. Lucas, the S. 1/2 of the N. W. 1/4, and the N. 1/2 of the S. W. 1/4, of section 34; the N. 1/2 of the N. W. 1/4, and the N. 1/2 of the N. E. 1/4, of section 35; the undivided one-half of the N. 1/2 of the N. E. 1/4, and the S. 1/2 of the S. E. 1/4, of section 27; the undivided N. 1/2 of the S. E. 1/4 of section 34; the undivided one-half of the N. 1/2 of section 26; and a half interest in the town site of Pierce,--all situated in township 26, range 2 W., in said Pierce county, besides the grantor's personal property of every description, including moneys and credits, for the expressed consideration of $100. The value of the property above described, including a balance in bank of about $500 and some $1,200 in county warrants, was from $12,000 to $15,000. Said Lucas, who died in the month of November, 1877, left surviving him 10 children, the fruits of his marriage with the said Ada W., ranging from 2 to 20 years of age. His widow was soon thereafter married to Amos W. Seeley, who died some time prior to the 29th day of December, 1894 (the exact date of his death not being shown by the record), leaving one child, the fruit of said marriage. On the day last named, said widow, by written lease, conveyed a portion of the premises above described to the defendant in error, Robert Lucas, who is one of the children and heirs at law of R. W. Lucas, deceased, for the period of 10 years from and after said date. This action was subsequently brought by the plaintiffs, as tenants in common, to assert their rights to said property as heirs of R. W. Lucas, claiming that the conveyance first above mentioned, and also the said lease, are void and ineffectual for the purpose of passing title, or conferring any right of possession as against them. The cause as presented to the district court involved several interesting and important questions which are not necessarily included in the present investigation, and will not, therefore, receive more than a passing notice.

It is argued by the plaintiffs: (1) That the deed from W. R. to Ada W. Lucas was never delivered in such manner as to give effect thereto as a conveyance of real estate. (2) It was made in lieu of a will, to take effect, if at all, after the death of the grantor. (3) If delivered as claimed, it was made with intent to provide for the grantor's wife by conveyance of all his property, with nothing reserved for his children,--a provision unreasonable, and therefore void. Mr. Lucas at the date of the deed was contemplating a visit to the Centennial Exposition, at the city of Philadelphia, and there is evidence strongly tending to prove that he was possessed by a morbid fear, amounting almost to a conviction, that he would not live to return. There is also evidence which would warrant the inference that the conveyance was originally intended rather as a testamentary disposition of the property therein mentioned, to take effect after the death of the grantor. Mrs. Lucas, it should be remarked, died some time previous to the commencement of this action, and the question of the understanding between herself and her husband at and before the execution of the deed is left in doubt. The defendant, who was then a member of his father's family, testified as follows: “I think the day before my father started to the Centennial he handed the deed over to my mother, and said: ‘Here, Ada, is the deed. I have turned everything over to you, and in case I die, or anything happens to me, you will have no trouble.’ * * * Mother took the deed, saying: ‘O, there is not going to anything happen to you.’ ” But, whatever may have been the intention of the grantor at the time to which we have referred, there is evidence of a subsequent delivery with intent to invest the grantee with the legal and equitable title to the property in controversy. To Mr. Frady, who accompanied him on his visit to Philadelphia, he remarked, after his return, that he intended to have the deed in force; that Mrs. Lucas should keep the family together. And about three weeks before his death he remarked to the witness, in the presence of Mrs. Lucas, that he had conveyed the homestead, together with the other property, to his wife, and that the details were all fixed. Mr. Hall, a neighbor and intimate acquaintance, testified that Mr. Lucas assured him during his last sickness, and about a month before his death, that everything (referring to his property) was fixed up in the event of his death, and that Mrs. Lucas, who was present at the time, got the deed and showed it to the witness. J. H. Brown, who had for several years been engaged with Mr. Lucas in business, and through whom the latter acquired title to most of the real estate conveyed, testified to a conversation with him, Lucas, a few days previous to the execution of the deed, in which he remarked to the witness that he was about to convey his...