Worthington v. Woods

• Decision Date: 18 October 1887
• Citation: 22 Neb. 230,34 N.W. 368
• Parties: WORTHINGTON v. WOODS.
• Court: Nebraska Supreme Court

22 Neb. 230

34 N.W. 368

WORTHINGTON

v.WOODS.

Supreme Court of Nebraska.

October 18, 1887.

Syllabus by the Court.

Where the testimony shows that a party is in possession of real estate under a contract of purchase, an action of forcible entry and detainer will not lie to oust him from such possession. Dawson v. Dawson, 17 Neb. 671, 24 N. W. Rep. 339;Railroad v. Skupa, 16 Neb. 341, 20 N. W. Rep. 393;Streeter v. Rolph, 13 Neb. 390, 14 N. W. Rep. 166;Pettit v. Black, 13 Neb. 154, 12 N. W. Rep. 841.

Error from district court, Lancaster county; POUND, Judge.B. F. Johnson, A. W. Field, and L. C. Burr, for plaintiff.

R. D. Stearns and Jesse B. Strode, for defendant.

MAXWELL, C. J.

The defendant in error brought an action of forcible entry and detainer against the plaintiff, to recover the possession of lot 7, in block 1, in Spencer's addition to Lincoln, and on the trial recovered a judgment of restitution. It appears from the testimony that one C. E. Worthington, a son of the plaintiff, entered into the following contract with one James E. Spencer:

“Know all men by these presents that C. E. Worthington is held and firmly bound unto Jas. E. Spencer, in the penal sum of 1,200 dollars, for the payment of which I bind myself firmly by these presents, upon condition as follows: Whereas, Jas. E. Spencer has agreed to sell and convey unto the said C. E. Worthington, for the consideration of twelve hundred dollars, the following described premises, to-wit: Lot number seven, (7,) in block one, (1,) in Spencer's addition to Lincoln, according to the recorded plat thereof, subject to a certain mortgage and notes of 200 dollars, payable on or before 2 years from May 27, 1886. And C. E. Worthington has agreed to purchase said premises, and to make payment as follows: Thirty-two promissory notes of twenty-five dollars each, and payable on the first of every month, until all are paid, with the rate of interest of 10 per cent. per annum from date until paid. Therefore the condition of this obligation is such that if the above bounden Jas. E. Spencer will convey said premises by deed of general warranty, and clear of all incumbrances, unto said C. E. Worthington, upon payment of said considerations at the times above specified, then this obligation to be void; otherwise to remain in full force and effect. Witness our signatures hereto subscribed this thirty-first day of May, A. D. 1886.

JAS. E. SPENCER.

C. E. WORTHINGTON.

Witness: WILLIE MEYER.

The State of Nebraska, Lancaster County--ss.: Be it known that on the thirty-first day of May, 1886, before the undersigned, Willie Meyer, a notary public in and for said county, personally came Jas. E. Spencer and C. E. Worthington, to me known to be the identical persons described in and who executed the foregoing bond as obligors, and acknowledged the said instrument to be their voluntary act and deed.

Witness my hand and notarial seal the day and year last above written.

+-------------------------------------+
                ¦[Seal.]¦WILLIE MEYER, Notary Public.”¦
                +-------------------------------------+
                

The plaintiff alleges that the above contract was made for his benefit, his son Charles making a payment thereon of $200. The plaintiff testifies: “We rented a home on O street, opposite Mrs. Riordan. Charles came in one day, and says: ‘Pa, you can save paying rent by buying that property on O street, where Jim Spencer has just moved an old blacksmith's shop.’ I asked what he would sell it for. He told me. I said: ‘How can we pay for it?’ He said: ‘Come out and see him.’ We went out, and saw him in his barn, and the thing was talked right over in the barn between me and Jim Spencer and my boy. Jim says: ‘Charley, buy it for the old man, and he can pay for it, and he can have a good home.’ He said: ‘How much could you pay,’ and looked at my boy, and kind of laughed. He said: ‘I can pay you $200 down.’ He says: ‘Well, I will take it, and $25 a month.’ The house was in such a condition you could not keep a hog in it, even if it was fenced up. There was no doors on the back part, nor windows. What about the $25? Answer. The $25 I was to pay monthly; that was to pay for the property till it was paid for on that contract. But there was a verbal contract between me and my son. It was right before Spencer,--Spencer was a witness to it. I never said no one else. He brought a little note in to me. I took my specs out to look at it, and says: ‘Mr. Spencer, I won't pay that; I am not going to pay rent; and before I will pay I will go back to Iowa, where I hadn't no rent to pay.’ He says: ‘Very well, Col.;’ and just scratched it off. I says, ‘All right.’ He had taken the money, and was counting it. I was taking the money back, but he took it up and arranged it that way. He never mentioned it to me, only what he said about Charley,--never. What was the condition of the house when you took possession? A. You could not keep a hog in it without it was fenced all round the house, nor without taking up the floor, which had tumbled all in, nor hadn't no light. You know what a blacksmith's shop is. We had to take the upper floor off. There was such a stench of filth we had to take it out, and a person who came there would know this himself. We patched it, and put another floor on, and put it in two rooms. The house was in that condition you could not lead a horse in only in certain corners of the house, because it was getting all worn through where it had been a blacksmith shop, and not fit for no human being...