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3. Where a husband agreed jointly with his wife, whom he knew to be incompetent, to care for another during life, in consideration of a conveyance of land to the wife, he cannot attack the conveyance, after the grantor's death, on the ground of the wife's incompetency.

4. An amendment to a petition in equity, filed after the submission of the case, asking additional relief, is properly disregarded, where such relief cannot be given without reopening the case and hearing further testimony.

5. Where the defense to a bill can be made only through a guardian ad litem, plaintiff, on failing, to establish his cause of action, was properly taxed with an allowance for the guardian's services.

Appeal from district court, Benton county; G. W. Burnham, Judge.

Action in equity to have decreed and quieted in the plaintiff the title to certain real estate. There was a hearing on the merits, the relief demanded was denied, and judgment was rendered in favor of the defendant for costs. The plaintiff appeals. Affirmed.

Tom H. Milner, for appellant. J. D. & C. Nichols, for appellee.

til her death, performing all the requirements on the part of himself and his wife, and thus furnishing all of the consideration for the contract; that the defendant failed to perform any of the requirements of the contract, and did not furnish any part of the consideration for it; and that, by reason of these facts, the defendant holds the legal ti. tle to the premises referred to in the contract in trust for the plaintiff. The petition fur. ther states that, since the making of the con. tract and delivery of the deed, the plaintiff has placed on the premises improvements "in the sum of about $2,300, and has also paid all of the taxes on the property since the deed was made," and asks that the defendant be decreed to have no title or interest in the premises excepting her dower and homestead rights therein, and that the title thereto be decreed and quieted in him.

1. The record contains a large amount of immaterial testimony, and numerous propositions of fact and of law are discussed and authorities cited which do not appear to us to be relevant to the controlling questions in the case. For example, the plaintiff has submitted evidence to show that he boarded with the parents of his wife before he married her; had helped them financially; promised the father to take care of the mother after his death; and made improvements on the premises after the, marriage, and before the deed to the defendant was delivered. No issue in regard to those matters is involved in this case. The petition alleges that the consideration for the deed was to be furnished after its delivery, and the deed, and the agreement under which it was delivered, and what was done pursuant to that agreement, must control. If it be said that the history of the parties in interest before the deed was delivered tends to corroborate the claim which the plaintiff makes that Mrs. Richart had agreed to convey the property to him, and that it was finally made to the defendant for the reason that she insisted upon having that done, and he consented to it because her mind was affected and for the purpose of benefiting her mental condition, it may be answered that his claim in that re spect is not sustained by the evidence. What was done was the result of deliberation, and was what the parties in interest intended to do. We are satisfied that Mrs. Richart proposed to vest the title to the property in the defendant for the benefit of the defendant and her children, and that Mrs. Richart in. tended that the interest of the plaintiff should be what he would be entitled to as the hus. band of the defendant and from the occupation of the premises as a homestead. The money which the plaintiff plaintiff furnished the parents, and the care he took of them, are creditable to his humanity and manhood, but cannot be given weight in determining the issues of this case.

It is said that the defendant failed to furnish any of the consideration for the deed.

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ROBINSON, C. J. The plaintiff and the defendant are husband and wife, and were married to each other in August, 1873. They made their home in a small house built on a tract of about 314 acres of land, now within the city of Belle Plaine. The mother of the defendant, Sibilla Richart, owned the premises, and resided with the plaintiff and his family, until her death, which occurred in 1888. On the 11th day of May, 1886, Mrs. Richart executed to the defendant a warranty deed for the premises designated, and on the same day the defendant and the plaintiff, as parties of the second part, signed an agreement for the benefit of Mrs. Richart, which contained the following: "Whereas, the said Sibilla Richart

has this day sold and conveyed to Sarah Ann Burkhardt certain real estate in Belle Plaine, Benton county, Iowa: Now, therefore, we, the said Sarah Ann Burkhardt and Jacob Burkhardt, her husband, do by these presents, and for and in consideration of said conveyance, hereby promise and agree to support, maintain, and take care of the said Sibilla Richart during the balance of her life; and we do hereby promise and agree to take good and proper care of the said Sibilla Richart, and provide her with a good and comfortable home, to provide her with all the clothing she may need during the balance of her life, to take good and proper care of her in case of sickness, and at her death to pay all her funeral expenses." The defendant continued to live with her husband until May, 1887, when she was taken to the hospital for the insane at Independence. She remained there several years, and was then transferred to the county infirmary of Benton county, where she has since remained. Seven children were born to the plaintiff and defendant. The plaintiff claims that he supported Mrs. Richart from the time the contract was made un


and that the plaintiff furnished all of it; dulged in such a case in favor of the legal titherefore that equity demands that the plain- tle. Cotton v. Wood, 25 Iowa, 43; Cecil v. tiff be decreed to be the owner of the proper- Beaver, 28 Iowa, 241. And where a purchase ty. The evidence does not sustain the claim is made by two persons, and one pays all of of the plaintiff that all of the consideration the purchase price, but conveyance is made was furnished by him. His wife, notwith- to both, no trust results in favor of the one standing her mental infirmity, was an active, who made the payment. His right would be industrious woman, and capable in dischar- to recover one-half of the amount paid. 1 ging household duties. She continued to per- Perry, Trusts, $ 133. The character of a conform those duties from the delivery of the veyance is fixed at the time it is made. “The deed until within from two to four weeks of trust must result, if at all, at the instant the the time when she was sent to the hospital deed is taken and the legal title vests in the for the insane, or during nearly one-half of grantee.” Jones v. Storms, 90 Iowa, 369, 57 the time her mother lived after the deed was N. W. 892; 1 Perry, Trusts, $ 133; 2 Pom. Eq. delivered. The only way in which the defend- Jur. § 1037; 10 Am. & Eng. Enc. Law, 24. ant could have performed her part of the con- Another rule applicable to such cases as this tract was by doing what she did, prior to is that a resulting trust can only be establishthe time she was sent to the hospital. It ed by evidence which is clear and satisfacthus appears that we have a case where, as tory. Robinson v. Robinson, 22 Iowa, 427. the consideration for a conveyance of prop- The evidence in this case fails to establish a erty to one of two persons, both agreed to trust in favor of the plaintiff. He testifies support the grantor during her lifetime, to that he did not intend that by the transaction furnish her a home, clothing, and all neces- title to the property should be vested in his saries, and to pay her funeral expenses, and wife. But his testimony to that effect is not where the person who received the title fur- sufficient to overcome the plain provisions of nished but a part of her share of the consid- the deed, and the testimony of other witeration contemplated by the agreement. Do nesses, which shows that it was executed acsuch facts give the person who furnished the cording to the intention of the parties to it. remainder of the consideration the right to the The defendant furnished at least a part of absolute ownership of the property? The the consideration for it, and, if it be true question must be answered in the negative. that the plaintiff may justly complain of her The deed and contract in question do not ex- failure to pay more, that fact does not entitle press a trust; therefore, if one exists, it must him to the property. On his own showing, be by implication. “Implied trusts are those the consideration for the deed was to be furthat arise when trusts are not directly or ex- nished after it was delivered, and it was not pressly declared in terms, but the courts, from affected by a trust when delivered. The evithe whole transaction and the words used, dence fails to show that a trust was intended imply or infer that it was the intention of the by any party to the transaction. See Maxparties to create a trust." 1 Perry, Trusts, well v. Maxwell, 109 Ill. 588. In the case of § 112. Trusts are sometimes established for Institution v. Meech, 169 U. S. 398, 18 Sup. the purpose of protecting the rights of par- Ct. 396, relied upon by the appellant, the evities and defeating fraud. 10 Am. & Eng. Enc. dence showed that the conveyance there in Law, 2. It is said that, “in all species of re- controversy was made pursuant to an agreesulting trusts, intention is an essential ele- ment by virtue of which the property was ment, although that intention is never ex- held in trust, and the case is not, therefore, in pressed by any words of direct creation.” 2 point. Pom. Eq. Jur. $ 1031. Somewhat different 2. It is contended that the defendant was classifications of trusts are adopted by differ- insane when the deed and agreement were ent authors. In 1 Perry, Trusts, $ 125, five made, that she was not competent to contract, classes of resulting trusts are given, and in and for that reason the deed should be set the first of those only can this case be claim- aside. Just what benefit the setting aside of ed to fall, and that is stated as follows: the deed would be to the defendant is not "When the purchaser of an estate pays the apparent, unless it be adjudged that he have purchase money and takes the title in the the legal title. If the deed were set aside, the name of a third person." It is said that, parties could not be restored to the conditions when the purchaser and the grantee are which existed before it was made. The granstrangers to each other, a trust arises from tor is dead, and the evidence fails to show an the transaction, and the grantee will be trus- agreement that the title to the property tee for the party from whom the considera- should be vested in the plaintiff. The rights tion proceeds. 1 Perry, Trusts, $ 126. And of the defendant would be prejudiced by the where the consideration is paid by one who setting aside of the deed. The plaintiff was a is under natural or moral obligation to pro- party to the transaction which included the vide for the grantee, as when the considera- deed, and fully consented to it. He should tion is paid by a husband and the conveyance not now be permitted to take advantage of is made to his wife, the transaction is prima the alleged disability of his wife, to her prej. facie an advancement, and the burden is on udice and his own advantage. Allen v. Berhim who seeks to establish a trust to over- ryhill, 27 Iowa, 534; Tiffany v. Tiffany, 81 come the presumption which must be in- Iowa, 122, 50 N. W. 554,

3. This cause was submitted in the trial Curus P. Gilbert Judgment for defendant, court to be taken under advisement and de- and plaintiff brings error. Reversed. termined as of the last day of the term, which was November 28, 1896. Afterwards, on the

S. L. Geisthardt, for plaintiff in error. A 19th day of December, 1896, but before the

N. Sullivan, for defendant in error. finding of the court was announced, the plaintiff filed an amendment to his petition, in IRVINE, O. This was an action by Faultwhich he alleged that he had occupied the ner, as assignee of the Connecticut River premises for more than five years next before Savings Bank, against Gilbert, on a contract the commencement of the suit, and made im- whereby it was alleged that Gilbert had provements and paid taxes thereon and insur- guarantied the payment of a promissory ance, and asking that, if he was found not to note made by one Parkins and his wife to be the owner of the premises, an accounting Benjamin A. Gibson, and which had become be had or ordered. A motion to strike the the property of the Connecticut River Bank. amendment from the files was made by the of the several matters pleaded in defense, defendant, but no ruling thereon is shown ex- the only one submitted to the jury was want cepting in the final judgment of the court of consideration for the contract of guaran. dismissing the petition and amendment. Re- ty. There was a verdict and a judgment lief op account of the amendment was not for defendant. The theory of the plaintiff granted. We do not find that the court erred was that Parkins and Gilbert were indebted in refusing to grant relief which it asked. to Gibson on a note or notes past due; that The case was not tried on the issue presented Parkins and wife executed their note, due by the amendment, the evidence given was in five years, and a mortgage to secure the not sufficient to authorize the court to make same; and that Gilbert guarantied the note, an accounting, and the relief asked could not in consideration of Gibson's accepting it, exhave been given without setting aside the tending the debt, and releasing the old notes. submission and opening the case for further The theory of the defendant was that Gib proceedings; hence, had the amendment been son had agreed that, if Gilbert would induce authorized if made in due time, it was prop

Parkins and wife to make the new note and erly disregarded because made too late to re- the mortgage securing it, Gibson would require consideration as a matter of right. But lease Gilbert from further liability; that Gilsee Buck v. Holt, 74 Iowa, 294, 37 N. W. 377; bert had done as required; and that, after Fogg v. Holcomb, 64 Iowa, 621, 21 N. W. 111; Gibson had accepted the new note and mort. Walton v. Gray, 29 Iowa, 440.

gage, Gilbert was induced, without further 4. The defense of the defendant was made consideration, to sign the contract of guar. by a guardian ad litem, and the sum of $150 anty. The court instructed the jury that, was allowed by the court for his services. No if it should find that a consideration passed objection is made to the amount, but it is in- between Gilbert and the payee of the pote, sisted that no sum should have been allowed it should find for the plaintiff Further, for that purpose to be paid by the plaintiff. “that, if the guaranty was executed for the

The commencement of this action, and the purpose of extending an indebtedness due mental condition of the defendant, made the from defendant to plaintifr." the consideraappointment of a guardian ad litem neces- tion would be sufficient. Again, that "be sary, and the proper compensation for his fore the plaintiff can recover in this case, services should be paid by the plaintiff. you must find from the evidence that the de Since no objection is made to the amount tax- fendant received a consideration for his ed, the action of the district court in taxing guaranty." These instructions were erroit should not be disturbed. The judgment neous, as applied to the facts of the case, be rendered appears to be correct, and it is af- cause each required, in order that a considfirmed.

eration should be found to exist, that such consideration should move to the defendant. That is not necessary. A disadvantage to

the promisee constitutes a consideration, alFAULKNER v. GILBERT.

though no advantage accrued to the prom. (Supreme Court of Nebraska. Jan. 19, 1899.)

isor. The extension of a debt to the prinCONTRACT-CONSIDERATION--GUARANTY.

cipal debtor is a sufficient consideration to 1. The consideration of a contract need not support a contract of suretyship as to the move to the promisor. A disadvantage to the new debt. Smith v. Spaulding. 40 Neb. 339, promisee is sufficient, although the promisor de- 58 N. W. 952. Under the pleadings and the rives no benefit therefrom. 2. The extension of time to a principal debtor

evidence in this case, the jury might hare is a sufficient consideration to support a guar

found that there had been an agreement to anty by a stranger of the payment of the new release Gilbert from the old debt if he would obligation.

procure the execution of the new note and (Syllabus by the Court.)

the mortgage, and that he nevertheless guar Error to district court, Cass county; Chap antied the payment of the new note concurman, Judge.

rently with its delivery and to procure its Action by Francis C. Faulkner, assignee of acceptance. If so, there was a considerathe Connecticut River Savings Bank, against tion; but the instructions given told the

jury that there would not be, because it did in the nature of repairs. It was additional not move to Gilbert. It is not deemed prop- work to complete the building, beyond that er at this time to comment upon the suffi- which the elector's had authorized by the ciency of the evidence, or necessary to con- adoption of the plans and specifications. sider other questions argued. Reversed and Comp. St. c. 79, subd. 2, § 10, gives to the remanded.

electors the power to build, bire, or purchase a school house. Section 12 gives them the power to determine the number of mills on

assessed valuation which shall be expended SCHOOL DIST. NO. 35 OF SHERMAN for such building. Section 13 provides that COUNTY v. RANDOLPH.

the tax collected shall be expended under the (Supreme Court of Nebraska. Jan. 19, 1899.) direction of the district, made at the annual ERECTION OF SCHOOL HOUSE.

meeting, or, in the absence of such direction,

as the district board shall direct. Here the Subject to certain restrictions, the qualified electors of school districts are intrusted with the electors had directed. It is clear that the power to determine what sort of a school house policy of the law was to permit the electors shall be erected, and the extent of the expendi

to determine whether a school house should be ture therefor; and, when so determined, the school board has no authority to change the

constructed, the amount to be expended, and sa me, and thus bind the district for an increased to permit them, also, if they chose, to desigexpenditure. Gehling v. School Dist., 4 N. W. nate the kind of a house which should be 1023, 10 Neb. 239, followed.

built. If they do so, the board is powerless (Syllabus by the Court.)

to increase the expenditure by changing the Error to district court, Sherman county; adopted plans, or by adding work which the Sinclair, Judge.

electors have not seen fit to provide for, Action by James L. Randolph against school Gehling v. School Dist., 10 Neb. 239, 4 N. W. district No. 35 of Sherman county. Judg- 1023, was a case like this, and the law ment for plaintiff,. Defendant brings error. construed as above indicated. Mizera v. AuReversed.

ten, 45 Neb. 239, 63 N. W. 399, presented a Wall & Burrowes, for plaintiff in error.

somewhat different question, but the same R. J. Nightingale and T. S. Nightingale, for

construction was indicated. Reversed and defendant in error.


action by Benjamin A. Smith against the

IRVINE, C. School district No. 35 of Sherman county undertook to erect a school house. Plans and specifications were adopted at a

FIRST NAT. BANK OF CRETE V. SMITH. district meeting, and the contract for erecting (Supreme Court of Nebraska. Jan. 19, 1899.) the house was let to Randolph. He built the

APPEAL-REVIEW. house according to contract. It was accepted,

Where the conclusion reached by the jury and he received the contract price. It was,

was the only one permissible under the evidence,

the judgment rendered on the verdict will be alhowever, discovered that the designs failed to

firmed. provide for certain work on the foundations, (Syllabus by the Court.) for certain braces, for window shutters, and

Error to district court, Saline county; for a platform, and steps at the door as means

Hastings, of ingress. Randolph, at the request of the district board, supplied these deficiencies, and

First National Bank of Crete. Judgment for brought this suit, not on a quantum meruit,

plaintiff. Defendant brings error. Affirmbut on the special contract with the board, to

ed. recover for the extra work. The district court gave him judgment for the price of the shut

F. I. Foss and W. R. Matson, for plaintiff ters, platform, and steps, and the district asks in error. E. S. Abbott, for defendant in era reversal.

However meritorious the claim may be as a moral obligation upon the district, we are sat- SULLIVAN, J. This action was brought isfied it cannot be sustained, at least through by Benjamin A. Smith in the district court a suit on the special contract with the district of Saline county to recover of the plaintiff board. In support of the claim the defendant in error the penalty imposed by the federal in error invokes Comp. St. c. 79, subd. 5, $ 9, statute upon national banks for charging as follows: "The said board shall bave the and receiving for the loan of money interest care and custody of the school house and in excess of the authorized contract rate. other property of the district, except so far The law of the case was settled in a former as the same shall be confided to the custody opinion reversing a judgment in favor of of the director." Conceding that this pro- the bank. Smith v. Bank, 42 Neb. 687. 60 N. vision confers upon the board authority W. 866. On a second trial of the cause the to contract for ordinary repairs, to maintain jury found specially that the plaintiff had the house in good condition, it cannot be given paid the defendant illegal interest in the the effect of authorizing new construction, sum of $486.64, and returned a verdict for without a conflict with other provisions of the double that amount. A motion for a new law. The work here in controversy was not trial was overruled, and judgment rendered

77 N.W.-68



in favor of Smith for $973.28. We will not Three or four of these mortgages had been specifically notice the several errors upon drawn and signed by Grotte by 5 o'clock on which a reversal is claimed. That the spe- that day, but none were then recorded. It cial finding of the jury is correct, and that was, however, agreed that the creditors the usurious transactions in question occur. should be put in possession; but, before this red within two years before the commence- was accomplished, the Nagle & Brecher at. ment of the action, are slıown by the undis- tachment had been levied. Grotte, however, puted testimony of Mr. Denison, the cashier proceeded to execute the mortgages, which of the bank. No other conclusion than the were filed for record the following morning. one reached by the jury was, under the evi- A few days thereafter the present action was dence, permissible. The judgment is af- begun by the mortgagees to foreclose their firmed.

mortgages. They alleged the attachment proceedings, and a contest with regard to the different claims; and a receiver was appoint

ed, who, pursuant to the orders of the court, NAGLE et al. v. FIRST NAT. BANK OF sold the stock. The controversy became one OMAHA et al.

between Nagle & Brecher, claiming under (Supreme Court of Nebraska. Jan. 19, 1899.) the attachment, on the one side, and the mortRES JUDICATA-ATTACHMENT-MORTGAGE PENDING

gagees, on the other, as to the right to the SUIT.

fund resulting from the sale. The decree of 1. One who by voluntary transfer acquires

the district court was in favor of the mort. rights in personal property after a writ of at- gagees, and Nagle & Brecher bring the case tachment has been levied thereon is bound by an

here for review. adjudication in the attachment case of the validity of such attachment.

Counsel have saved us a detailed exam2. An attachment was levied on the goods of ination of quite a large record by agreeing A. Subsequently A. made mortgages on such substantially as to the facts of the case and goods to other creditors. Thereafter the petition in the attachment case was amended so as to

as to the question presented, which is whethstate a different cause of action. On motion er the abandonment by Nagle & Brecher of to discharge in the attachment case, the attach- their first petition, and the amendment alment was held good. Held, that the mortgagees could not, in an independent action, be heard to

ready referred to, operate so far to discharge attack the attachment.

the original attachment as to postpone the (Syllabus by the Court.)

rights of Nagle & Brecher to those mort

gagees whose rights accrued subsequent to Error to district court, Douglas county;

the original levy, but before the amendment. Duffie, Judge.

Counsel for the mortgagees present a large Action by the First National Bank of Oma

number of authorities to establish two propha and others against Nagle & Brecher.

ositions: First, that the amendment of the Judgment for plaintiffs. Defendants bring

petition from one for goods sold and deliverror. Reversed.

ered to one for money lent operated as a Charles Ogden, Joel W. West, and J. M.

change of the cause of action; secondly, that Macfarland, for plaintiffs in error. Mont

an amendment which does substantially gomery & Hall, for defendants in error.

change the cause of action in an attachment

case discharges the attachment, as to rights IRVINE, C. Prior to March 15, 1892, R. accruing between the original levy and the R. Grotte was engaged in the liquor business time of amendment. Without deciding it, in Omaha. He became indebted to the firm we assume that the first proposition is sound, of Nagle & Brecher, who on the date men- but we think the second is subject to certain tioned instituted an action against him aided qualifications which prevent its operation in by proceedings in attachment. The proceed- favor of the mortgagees in this case. It will ings were begun under telegraphic instruc- undoubtedly be conceded that the judgment tions from Nagle & Brecher to attorneys in of the district court on the motion to disOmaha, and the petition filed was for goods charge the attachment, affirmed by this court sold and delivered. As a matter of fact, the in Grotte v. Nagle, operated as an adjudiclaim was for money lent; and, some time cation, as between the parties to that case, after the institution of the proceedings and of the regularity and continued effect of the the levying of the writ of attachment upon attachment, notwithstanding the amendment Grotte's stock, the petition was amended so made. The mortgagees are not in the posi. as to count upon money lent, instead of goods tion of subsequent attaching creditors or sold and delivered. A motion was made to others claiming rights independent of the dissolve the attachment. This motion was parties to the attachment case. Their claim overruled. Grotte brought the case to this is under voluntary transfers from Grotte, the court, where the judgment of the district defendant in that case; and those transfers court was affirmed. Grotte v. Nagle, 50 Neb. were not made (that is, they did not become 363, 69 N. W. 973. The day the attachment effective) until after the levy of the attachwas levied, Grotte had agreed with Mont- ment and the service of summons. Section gomery, Charlton & Hall, attorneys repre- 85 of the Code of Civil Procedure provides: senting a number of other creditors, to exe- "When the summons has been served or cute in their favor mortgages upon his stock. publication made, the action is pending so as

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