Wise v. Newatney
| Decision Date | 02 May 1889 |
| Citation | 26 Neb. 88,42 N.W. 339 |
| Parties | WISE v. NEWATNEY. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Where the whole tenor and purport of the testimony of three witnesses on the part of the defendant was to the effect, and tended to prove, that at the commencement, and during the entire progress of the negotiation for the sale of the land involved in the suit by P. L. W., who held the same by tax-title, to the defendant, the plaintiff, who afterwards bought in the general title thereof, and by this suit seeks to oust the defendant from the same which he holds by deed from P. L. W. made pursuant to a sale made upon such negotiation, acted for and in concert with P. L. W., either as agent or as joint owner with him of said land, and made certain statements to defendant as to the title of P. L. W. to the land, held no error on the part of the trial court to instruct the jury in the following language:
2. Where a witness was called upon to testify as to words spoken to him in a language which he does not understand, and which were interpreted to him into his own language by an interpreter known to him, and in whom he confided in the presence of the speaker, such testimony held unobjectionable as hearsay evidence. See Fabrigas v. Mostyn, 20 State Tr. 122, 123.
3. One of the principal issues presented was that arising upon the allegation of the defendant in his answer that the plaintiff, as the agent of his father, P. L. W., in order to induce defendant to purchase said land, assured him that at the expiration of four years from the date of the conveyance thereof he (the defendant) would have an absolute title in fee-simple, and there being evidence tending to prove that the plaintiff made such an assurance to the defendant before and at the time of the conveyance of the land by P. L. W. to the defendant, also that before and at the time of the making of such assurance the plaintiff was the general legal adviser of the defendant, held, that an instruction which to the substance and general purport of the one quoted in the first clause of this syllabus added words to the effect that if the jury should find that the defendant, in the purchase of said land, acted upon the said statements and representations of the plaintiff, believing what plaintiff said and represented to him (the defendant) was true, and relied upon and acted upon said representations of plaintiff as their legal adviser, then you are instructed that the plaintiff cannot recover in this action, if error, which is not decided, was error without prejudice to the plaintiff.
4. Where the defendant praved as alternative relief that he might be subrogated to the rights of his grantor, who held the land in controversy under a tax-title, to a return of the money paid by him for such tax-title, as well as for a return of taxes subsequently paid by defendant, on said land, in case of the failure of said tax-title, held, that the admission of the informal and void taxdeed under which defendant's grantor claimed to hold said land, and of the receipts for subsequent taxes paid by defendant on the land for the purpose of establishing the amount of an alternate recovery therefor, was no error.
Error to district court, Cass county; CHAPMAN, Judge.
Covell & Polk, for plaintiff in error.
B. S. Ramsey and Matthew Gering, for defendant in error.
William S. Wise brought his action in the nature of ejectment in the Cass district court against Joseph Newatney, for the title and possession of lots 67 and 68, in the E. 1/2 of the S. W. 1/4 of section 12, in township 12 E.,--two small lots of land containing somewhat less than 15 acres in the aggregate. The plaintiff, by his petition, alleged title and the right of possession of said real property in himself, and the wrongful possession and the enjoyment of the rents and profits thereof by the defendant. The defendant, by his amended answer, denied each and every allegation of said petition alleged, and set out several purchases of said lots by one P. L. Wise, at sales thereof by the county treasurer for delinquent taxes, the execution of several deeds therefor upon such sales by the said county treasurer to said P. L. Wise, and the due recording of such deeds, the taking of the possession of said land by the said P. L. Wise under and by virtue of the said deeds, and the holding of such possession thereof by him until the conveyance by him thereof to defendant's grantor thereinafter set forth; that on or about the 31st day of August, 1882, and prior thereto, the plaintiff was the agent of said P. L. Wise and wife, who are the parents of said plaintiff, and that as such agent and representative of said P. L. Wise and wife, he did make certain representations to defendant, who, upon the date last aforesaid, and for sometime prior thereto, was negotiating for the premises described in plaintiff's petition; that on or about the date last aforesaid said plaintiff, in order to induce defendant to purchase said lands, assured him that at the expiration of four years from the date of said conveyance he (the said defendant) would have an absolute title in fee-simple, and then and there concealed the facts that a defect existed in the title to said lands, and that he (said plaintiff) intended afterwards to purchase the general title to said lands; that said plaintiff, acting as the agent of said P. L. Wise as well as for himself, made the above fraudulent representations of said facts with full and complete knowledge of the condition of the title of said real estate, and that he failed to disclose said material facts with full knowledge of the condition of the title of said real estate, and that he failed to disclose such material facts; that such misrepresentations and concealments were made and withheld by said plaintiff with intent to induce defendant to act thereon, and, defendant being entirely ignorant of the condition of said title and other material facts, and relying upon the statements and representations of the said plaintiff, did so act thereon, and that, for a valuable consideration, to-wit, $150, the said P. L. Wise, at the request and instigation of plaintiff, transferred said lands by quitclaim deed to one Malinda Newatney, which said deed was duly recorded, etc.; that on or about the 24th day of March, 1884, said Malinda Newatney, who is the daughter of defendant, and to whom the misrepresentations and concealments of material facts, as thereinbefore set forth, were also made, deeded said premises to the defendant, who was the real purchaser of said premises from said P. L. Wise and wife, and which said fact was well known to the plaintiff. Defendant further alleged that, by himself and his grantors, he had been in the open, notorious, exclusive, adverse possession of said premises for more than 10 years prior to the commencement of said action; that valuable, permanent improvements have been made thereon; that the improvements made thereon by defendant are reasonably worth $250; that defendant has paid the taxes on said land for the years from 1882 to 1886, both inclusive, amounting to $25.15; that the cause of action of the said plaintiff did not accrue within three years next before the commencement of said action, etc., with prayer that defendant's title to said premises may be quieted and decreed in him; and that, if defendant's title to said land should be found to be invalid, defendant prays that the amount so paid by him, including the considerationfor the purchase of the same, and the taxes paid thereon subsequent to said purchase, and the value of the improvements thereon, with interest, etc., be adjudged to be a lien upon said premises, and for general relief. The plaintiff filed a reply, which amounts to a general denial. There was a trial to a jury, with a verdict and judgment for the defendant. The plaintiff brings the cause to this court by petition in error.
The following are the errors assigned: (1) The court erred in giving the paragraph of instructions numbered sixth of the instructions asked for by defendant, and given on his behalf. (2) The court erred in giving paragraph numbered second of the instructions given by the court on its own motion. (3) The court erred in giving paragraph numbered third of the instructions given by the court on its own motion, from the word “unless” therein. (4) The court erred in admitting in evidence the testimony of defendant Newatney as to conversations had with P. L. Wise and W. S. Wise concerning the taxtitle that was purchased by defendant of P. L. Wise, and deeded by P. L. Wise to defendant's daughter, as it was all hearsay. (5) The court erred in admitting in evidence the tax receipts, marked “Exhibits S, T, W, V, and W.” (6) The court erred in admitting in evidence the testimony of Malinda Newatney as to communications had with P. L. Wise and W. S. Wise, respecting the purchase of the tax-title made in her name from P. L. Wise. (7) The court erred in omitting in evidence the records of tax-deeds from Book V, of deeds, etc. (8) The court erred in refusing to set aside the verdict.
On the trial, as appears by the bill of exceptions, plaintiff...
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