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BROWNELL & CO. v. FULLER et al. (Supreme Court of Nebraska. Jan. 5, 1899.) REPLEVIN-JUDGMENT-PLAINTIFF IN POSSESSION.

In an action of replevin, where plaintiff was in possession of the personal property in dispute at the time of the trial, a judgment of the district court for a return of the property, or for its value of a certain fixed sum, must be reversed where there was no finding in the verdict with reference to such value.

(Syllabus by the Court.)

Error to district court, Douglas county; Powell, Judge.

Action by Brownell & Co. against John A. Fuller and Daniel W. Smith. Judgment for defendants, and plaintiff brings error. Reversed.

Lane & Murdock and Congdon & Parish, for plaintiff in error. B. N. Robertson, for defendants in error.

shall be for a return of the property, or the value thereof in case a return cannot be bad, or the value of the possession of the same, and for damages for withholding said property, and costs of suit. The instruction of the court therefore properly required the jury to find the value of the property as shown by the evidence, but the jury failed to do this, but found the damages to be $500. The court seems to have assumed that this was a finding equivalent to a finding of the value of the property, and accordingly its judgment was for a return of the property, or, in case a re turn could not be had, that defendant recover of plaintiff the value of said property, assessed at $500. There was in the verdict no attempt to fix the value of the property, and the judgment in that respect was for that reason without the support of a finding necessary to sustain it therefore cannot stand. Foss v. Marr, 40 Neb. 559, 59 N. W. 122; Gordon v. Little, 41 Neb. 250, 59 N. W. 783. The judgment of the district court, because of the error indicated, is reversed, and the cause is remanded for further proceedings. Reversed and remanded.

RYAN, C. This action of replevin was instituted in the district court of Douglas county by Brownell & Co., & corporation, against John A. Fuller and Daniel W. Smith, for the possession of a certain boiler and engine. It has once been in this court, and for a complete statement of the facts reference may be had to the opinion filed on that occasion. Fuller v. Brownell, 48 Neb. 145, 67 N. W. 6. After the cause was remanded, there was another trial, in which there was a judgment in favor of Fuller, of which plaintiff in its turn seeks a reversal by proceedings in error. Plaintiff in the district court gave bond as required by statute, and thus was in possession of the property in dispute at the time of the trial. The court instructed the jury to find for the defendant Fuller that at the commencement of the action he had the right of property and the right of possession of the property described in the petition. This instruction closed with this language: "You will further find the value of said property as shown by the evidence, together with interest thereon at seven per cent per annum from the 13th day of January, 1891, to Vay 3, 1897.” After receiving this instruction, the jury returned the following verdict: "We . do find for said J. A. Fuller, and do find at the commencement of this action said defendant had the right of property and the right of possession of the boiler and engine in controversy herein, and do assess his damages at the sum of $500, together with interest thereon at the rate of seven per cent. per annum from January 13, 1891; total amount, $754 & 33 cents." There was a remittitur of $34.73, whereupon there was a judgment in favor of the defendant Fuller "that he recover from plaintiff his damages assessed at $219.60, or, in <ase return of said property cannot be had, that he recover of said plaintiff the value thereof, assessed at $500, and interest there on, assessed at $219.60, and costs of suit.”

It is required by section 191a, Code Civ. Proc., that in cases like this the judgment


NELL, IOWA. (Supreme Court of Nebraska. Jan. 5, 1899.) PLEADING – NEw MATTER IN ANSWBR - FAILURX

TO REPLY. All material allegations of new matter contained in an answer are admitted, and must be taken as true, if no reply is made to them. Lumber Co. v. Ashby, 59 N. W. 913, 41 Neb. 292, followed.

(Syllabus by the Court.)

Error to district court, Gage county; Bush, Judge.

Action by the First National Bank of Grinnell, Iowa, against Samuel K. Davis. Judgment rendered for plaintiff on appeal from the county court, and defendant brings error. Reversed.

G. M. Johnston, for plaintiff in error. J. E. Cobbey, for defendant in error.

RYAN, C. This action was brought in the district court of Gage county upon the transcript of a judgment rendered by the district court of Poweshiek county, Iowa, and a recovery was had herein as prayed. In the petition filed in the district court of Gage county, it was alleged that the judgment in Iowa had been rendered by a court having general equity and common-law jurisdiction. There was no averment as to jurisdiction of the person of the defendant in the Poweshiek county district court. In the answer in this case in the district court of Gage county it was alleged that the action in Powesbiek county, Iowa, was upon an alleged negotiable promissory note claimed to have been executed by defendant and others; that at the time of the execution of said note, and at all times since, none of the purported makers


was a resident of Iowa; that said note was NORVAL, J. This was an action in ejectnot payable at any particular place in Iowa ment to recover about 90 acres of land in Otoe in which a maker of said note was a resi- county. The petition contained the usual dent; and there was a denial that said action averments, and the answer was a general de in Iowa was brought where any defendant, nial. A trial resulted in a judgment for plain. being a maker of said note, resided. In this tiff below, Hattie W. Brown. A second trial connection it was alleged in the answer was awarded under the statute, which termithat the provisions of section 2586, C. 4, 2 nated in a judgment for the defendant, to reMcClain's Ann. Code Iowa, governed as to verse which is the purpose of this proceeding. the place where suit must be brought in that The sole question presented is whether the state, and that the provisions of said section findings and judgment are sustained by the applicable are in this language: “But in all evidence. The trial was to the court, withactions upon negotiable paper, except when out the aid of a jury, and much immaterial made payable at a particular place, in which and incompetent evidence adduced, any maker of such paper, being a resident of which, upon review, must be wholly disrethe state, is made defendant, the place of garded. Plaintiff and defendant are sister trial shall be limited to the county wherein and brother, and their mother, Sarah Hartsome of the makers of such paper reside." man, owned the land in controversy. Both It was, therefore, in the answer, denied that parties claim title through her; the plaintiff the district court of Poweshiek county, Iowa, by warranty deed executed by Mrs. Hartman had jurisdiction of the subject matter of the on December 11, 1891, and the defendant unaction, or of the person of the defendant. der a deed executed by Mrs. Hartman and There was no reply to the averments of the her husband on January 12, 1894. It is asanswer herein, and these averments of facts serted by the defendant, and the trial court disclosing the want of jurisdiction of the dis- evidently so found, that the deed to plaintiff trict court in Iowa were, therefore, admitted was never delivered to her by the grantor for to be true. Lumber Co. v. Ashby, 41 Neb. the purpose of vesting title to the real estate 292, 59 N. W. 913. There was in this case,

in the grantee. There is no conflict in the under the facts and statute pleaded in the evidence bearing upon the question. The answer, a tacitly confessed want of juris- plaintiff and her husband were the only witdiction in the district court of Poweshiek nesses examined upon that point. It is discounty, Iowa, to render a judgment against closed from their testimony that Mrs. Hartthe defendant; and such a judgment (ren

man, while at the home of her daughter, Mrs. dered, as we must assume, without jurisdic- Brown, in December, requested the husband tion) furnished no sufficient evidence to sus- of the latter to prepare the deed for the land tain a judgment in any of the courts of this to the daughter, to carry out the desire the state. The judgment of the district court is, grantor had more than once expressed to contherefore, reversed, and the cause is remand- vey the premises to her said daughter. The ed for further proceedings. Reversed and re- deed was drawn as requested, reserving theremanded.

in an estate for life in Mrs. Hartman, which instrument she signed in the presence of, and acknowledged the execution thereof before,

F. E. Brown, the grantee's husband, as a noBROWN v. HARTMAN.

tary public. The evidence is positive that

the deed was thereupon, by Mrs. Hartman, (Supreme Court of Nebraska. Jan: 5, 1899.)

delivered to her daughter with the request Deep-DeliverY-EFFECT DESTRUCTION SUR

that she keep the same, but not record it un

til after the grantor's death; the reason she 1. Where a deed is delivered to the grantee

assigned therefor at the time being "that cerby the grantor, it at once becomes operative as a conveyance, if such was the intention of

tain members of the family would kick up a the parties, even though the instrument was family quarrel if they found it out," and for not to be recorded during the lifetime of the this reason alone it was withheld from the grantor. 2. The destruction of a deed after its deliv.

record. The deed was delivered by plainery does not devest the title of the grantee. tilf to her husband for safe-keeping, who

3. The surrender of an unrecorded deed by placed the same in his safe, where it remainthe grantee to the grantor will not reinvest the

ed from December, 1891, until January 10, title in the latter. 4. The findings and judgment are not sup.

1894, when, at the request of Urs. Hartman, ported by the evidence.

who at the time was very ill, and confined (Syllabus by the Court.)

to her bed, Mrs. Brown obtained the deed, Error to district court, Otoe county; Chap

and, after having a copy made, handed the

original to her mother, without any intention man, Judge. Action by Hattie W. Brown against Ephriam

on the part of plaintiff to reinvest the title to

the premises in Mrs. Hartman, but solely for P. Hartman. Judgment for defendant, and plaintiff brings error. Reversed.

the purpose of pacifying the latter. To the

question propounded to plaintiff on cross-erM. L. Hayward and Paul Jessen, for plain- amination by defendant's counsel, “How did tiff in error. John C. Watson, for defendant you happen to deliver that deed to your mothin error.

er?” the witness answered, "She was sick at


Judge that the deed was delivered to plaintif's husband by the grantor, to be retained by him until called for by the grantor. The evidence is clear and convincing that there was an actual delivery of the deed to the plaintiff by the mother with the intention of conveying the title. The deed upon such delivery be came operative as a conveyance. The de fendant was aware of plaintiff's deed when the deed to him was executed. The judgment is reversed, and the cause remanded. Re versed and remanded.

the time, and told me that she wanted it; and I would do anything to please her, so I gave it to her.” Shortly after Mrs. Hartman received the deed, it was destroyed by the defendant, but whether at the request of the plaintiff or her mother the witnesses do not agree in their statement of the occurrence. It is, however, testified to positively by plaintiff, and there is no conflict in the evidence on the point, that Mrs. Hartman, before obtaining the deed, did not inform her daughter that she was going to have it destroyed, but, on the contrary, stated to Mrs. Brown that “she wanted to put it in her box with the rest of her papers.” Mrs. Hartman died on February 2, 1894. The deed to plaintiff was executed and delivered for some purpose, and all the testimony tends to show that the object of its execution-and the only one was to invest the title to the property in Mrs. Brown. That it was not testamentary in its character, to take effect alone on the death of the grantor, is evidenced by the fact that the deed contained a clause reserving a life estate in Mrs. Hartman. If the intention of the parties was that the title was not to pass during the lifetime of the grantor, then there was no occasion for inserting the provision just mentioned. The evidence satisfies us, and no other legitimate conclusion can be drawn from the proofs in this record, than that the deed was delivered and received with the intention that it should become effective at once as a conveyance of the property. Only the recording of the instrument was to be delayed until after the death of the grantor. This case, in some of its principal features, is like the case of Brown v. Westerfield, 47 Neb. 399, 66 N. W. 439. There a mother signed and acknowledged a deed conveying to her daughter, subject to a life estate, lots in the city of Lincoln. The deed was delivered to the officer taking the acknowledgment for the use of grantee, with the understanding that he was to retain possession of the instrument until the death of the mother, when it was to be filed for record. Subsequently the deed was left in the possession of the mother, and was destroyed, or had been lost. It was held that the title passed to the daughter upon the delivery of the deed to the officer, and the subsequent loss or destruction of the instrument did not operate to devest her title. Neither the surrender of the deed in the case at bar by the daughter to her mother nor the subsequent destruction operated as a reconveyance of the title. Brown y. Westerfield, supra; Bunz v. Cornelius, 19 Neb. 107, 26 N. W. 621; Connell v. Galligher, 39 Neb. 793, 58 N. W. 438; Devl. Deeds, $ 300, and cases there cited; Rogers v. Rogers, 53 Wis. 36, 10 N. W. 2; and authorities cited in brief of plaintiff. We are cognizant of the rule, and have often applied it, that a decree based on conflicting evidence will not be molested on appeal. But the present case does not fall within that principle. There is absolutely no competent evidence to support the finding of the trial

TERRY V. MORAN et al. (Supreme Court of Minnesota. Jan. 11, 1899.)

MORTGAGES-PRIORITIES. Two mortgages on the same land, but each to a different mortgagee, were dated the same day, executed and recorded at the same time, and both mortgagees were represented by the same agent. Hed, on the evidence, the court did not err in finding that the mortgages were co-ordinate, and in refusing to find that one mortgagee, through such agent, promised the other that the latter's mortgage should be prior.

(Syllabus by the Court.)

Appeal from district court, Ramsey county; Olin B. Le udge.

Action by Caroline S. Terry against John D. Moran and others. From an order denying a new trial, plaintiff appeals. Affirmed.

William G. White, for appellant. Warren H. Mead and Michael & Johnston, for respondents.

CANTY, J. Plaintiff brought this action to foreclose a mortgage held by her on a certain parcel of land in St. Paul. On the trial the court found that plaintiff's mortgage and another mortgage held by defendant Frances A. Mead are co-ordinate and of equal priority. Plaintiff appeals from an order denying a new trial.

The only error complained of by appellant is the failure of the court to find that her mortgage is superior to the Mead mortgage. In 1883, Frances A. Mead was the owner of the land, and conveyed it to one Collins for the consideration of $3,000. He paid her $500 in cash, and executed to her a mortgage for $2,500 to secure the balance of the purchase price. Nearly five years afterwards plaintifr loaned Collins $600, receiving as security for the loan a second mortgage on the land. Three months later plaintiff loaned him $2,500, and he executed to her another mortgage on this land to secure the repayment of the same. The defendant Warren H. Mead acted for her in making these loans, and made them out of her money, which he had in his hands to loan for her according to his best judgment. When he made the latter loan, he applied $1,200 of the money so loaned as a part payment on the mortgage of his wife, Frances A., who at the same time executed to Collins a release of her mortgage, and received from him a new mort

gage on the same land for $1,200, the balance due her. This new mortgage for $1,200 and plaintiff's mortgage for $2,500 were both dated the same day, and were executed and recorded at the same time, the former mortgage receiving the register No. 66,072, and the latter register No. 66,073. Subsequently plaintiff, acting through her attorney, Warren H. Mead, foreclosed both of her mortgages under the powers of sale contained therein. Before the year to redeem expired, Collins conveyed the land to defendant Moran, who redeemed from both foreclosures by executing to plaintiff a new mortgage on the land for $3,400. At the same time Frances A. Mead executed a release of her mortgage for $1,200, and received from Moran a new mortgage on the land for the same amount. Those last two mortgages were also dated, executed, and recorded at the same time, plaintiff's mortgage receiving the prior register number. Warren H. Mead acted also as the agent of his wife. She stipulated on the trial that he "was her agent, authorized to conduct and carry forward the transactions on her behalf in the manner that he did.”

Plaintiff knew that Frances A. Mead held the mortgage for $1,200; but the evidence tends strongly to prove that Warren H. Mead had always represented to plaintiff that her mortgage for $2,500 should be and was prior to his wife's mortgage. But we cannot hold that the evidence is conclusively in plaintiff's favor on this point. The evidence also tends strongly to prove that he committed a gross error of judgment or a gross breach of duty in loaning the $2,500 for plaintiff on this land without having his wife's mortgage wholly satisfied or made subsequent to plaintiff's mortgage. But his wife is not responsible for his failure to perform his duty to plaintiff as her agent in any of these respects, and his wife is not estopped by reason of such failure. The order appealed from is therefore aflirmed.

John J. Davis. One of these judgments was for $190, and was rendered March 31, 1894. The other was for $240, of the same date. It was alleged in the petition that the foreclosure decrees, upon which the sales left due the sums alleged, were entered at the September term, 1892. There is in the record no information as to the nature or date of the original indebtedness secured by the mortgages upon which foreclosures were had. There was, therefore, no evidence which would serve to estop Mrs. Davis' assertion of whatever rights were hers, because of having permitted her husband to deal with her property, and obtain credit upon the faith of being its real owner. The property, through an intermediary trustee, was conveyed by the husband of Mrs. Davis to her between the date of the entry of the decrees and the rendition of the deficiency judgments. She based no claim of protection on any other fact than that the property had been acquired by her husband by the use of her means derived independently of him or his property. The title was taken in his name to enable him to handle it more readily in the frequent exchanges contemplated, but, as between the husband and wife, she was always recognized as entitled to the ownership. The property she sold to Mr. Allen, who in some matters had acted as her attorney with reference to the management of some cases in court. The trustee through whom she derived the title from her husband was also Mr. and Mrs. Davis' counsel in legal matters. There was no attempt to disguise the fact that the instrumentalities she employed were such as she would probably have used if she had intended to obtain title to the property of her husband to the prejudice of his creditors. Notwithstanding these unfavorable conditions, the evidence was direct and convincing that her equitable rights were such that the legal title she had acquired and conveyed were entitled to protection, and the district court properly so held. Its judgment is accordingly affirmed.

(Supreme Court of Nebraska. Jan. 5, 1899.)

Findings of fact of the district court upon
fairly conflicting evidence will not be disturb-
ed on appeal in the supreme court.

(Syllabus by the Court.)

Appeal from district court, Lancaster county; Holmes, Judge.

Suit by the Des Moines Insurance Company against John J. Davis and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Boehmer & Rummons, for appellant. A. R. Talbot, for appellees.

FISHER et al. v. DONOVAN et al.
(Supreme Court of Nebraska. Jan. 5, 1899.)


1. To create a trust fund out of which a trustee may make disbursements, the trustor must have some present or future right to, or interest in, the fund directed to be set apart,

2. A member of a fraternal beneficiary society has no such interest or property in the proceeds of a certificate therein that he can impress such proceeds with a trust in favor of his creditors.

3. A certificate in a fraternal beneficiary so ciety is a mere expectancy, and the beneficiary has no vested right therein.

4. A member holding a certificate in a fraternal beneficiary society may, at his option, change the beneficiary therein, so long as he complies with the laws of such society, and

RYAN, C. This was an action in the district court of Lancaster county to subject certain real estate, of which the title was held by Sophia W. Davis, to the payment of two deficiency judgments against her husband,

keeps within its limitations, and those of the statute under which it is organized.

5. Upon the death of a member holding a certificate in a fraternal beneficiary society, the money arising from such certificate vests absolutely in the beneficiary properly designated by the member.

6. Creditors have no right to, or interest in, a certificate in a fraternal beneficiary society, either before or after the death of the member, and they cannot participate in the fund derived therefrom.

7. The contrary not appearing, the statute of a sister state will be presumed to be similar to our own,

8. The rules and regulations of fraternal beneficiary societies for the creation and payment of their funds to the properly designated beneficiaries should receive such liberal construction as to carry out the benevolent purposes sought to be accomplished.

9. The promise of one party to pay the debt of anothe cannot be enforced unless such promise be in writing, signed by the party to be charged.

(Syllabus by the Court.) Appeal from district court, Fillmore county; Hastings, Judge.

Action by Levi L. Fisher, assignee of John Fisher, and others, against Lillian Donovan and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

John D. Carson, for appellants. Charles H. Sloan and F. B. Donisthorpe, for appellees.

SULLIVAN, J. This action was brought to restrain the defendant Lillian Donovan, widow of Jere Donovan, deceased, from converting to her own use the proceeds of two certificates of life insurance issued to her late husband by fraternal beneficiary societies, and to impress such proceeds with a trust in favor of the plaintiffs as creditors of the insured. From a decree in favor of de fendants, the plaintiffs have appealed.

Jere Donovan was postmaster at Geneva, in Fillmore county. He was indebted to the plaintiffs and others for borrowed money. He represented to his creditors that in case of his death they would be paid out of the moneys to be derived from insurance upon his life. The insurance carried by him was as follows: In the Knights of Pythias, $1,000, payable to his two infant children; in the Ancient Order of United Workmen, $2,000, of which sum $1,000 was payable to his widow and $500 to each of his children; in the Modern Woodmen of America, $2,000, of which half was payable to his widow and half to his children. September 4, 1894, Mr. Donovan was taken sick. His sickness continued until October 25th of that year, when he died. At times during his illness he was troubled and anxious about his debts, and expressed a desire that, in case he did not recover, they be paid out of his life insurance. On one occasion he asked Mr. Carson, an attorney, to call, and to him he gave a list of his liabilities. On another occasion, while bis physician was present, he called his wife into the sick room, and said to her: "I want you to pay my debts. Will you do it?” to

which she responded, “Yes." He also said, "Doctor, you hear this, don't you?" to which the doctor replied, “Yes." Nothing else was said or done. It is asserted by appellants that these facts and circumstances constituted Lillian Donovan a trustee of the fund afterwards received by her in satisfaction of the benefit certificates, and that she should be now compelled to execute the trust. Mrs. Donovan was appointed administratrix of her deceased husband's estate. After setting off to her the exemptions provided by law for the widow, there remained nothing for distribution among creditors. However, she voluntarily paid several claims against the estate, and the appellants, asserting that she did this in partial execution of the trust, earnestly insist that she be now required to carry out completely the wishes expressed by her husband in his last illness. To create a trust fund out of which a trustee may make disbursements, the trustor must have some pres. ent or future right to, or interest in, the property directed to be set apart; in other words, to constitute a valid trust there must be (1) a competent trustor, (2) a transfer to a competent person, (3) a fund or object capable of being transferred, and (4) a cestui que trust capable of taking or participating in the fund. Commissioners v. Walker, 6 How. (Miss.) 143. Had Jere Donovan such a right or interest in the certificates in question, and have his creditors, the appellants here, the right to participate in the fund? We think not. The purposes and objects of these beneficiary organizations are vastly different from those of ordinary life insurance companies. The so-called "old line" life insurance companies immediately on the issuance of a policy confer on the beneficiary a valuable right, which cannot be devested without the consent of such beneficiary. Such policies may be pledged or assigned by the beneficiary as security for debts of the insured. These policies often by law have a marketable or cash surrender value, making them a form of property. But not so with certificates in fraternal beneficiary societies. They are mere expectancies. The beneficiary has no vested rights in them, and the insured may at any time, at his option, change the beneficiary, provided only he keeps within the limitations established by the rules of the society, and complies with the laws respecting a change of beneficiary. Neither have these certificates a cash surrender value. The supreme court of Pennsylvania, in construing a certificate similar to those in question here, say: “The testator had no property in the fund. * The fund in fact was never his property. He had power of appointment only, and such power did not create any property in him. The purpose of these certificates excludes the claim that there was any property in him." Association V. Jones, 154 Pa. St. 99, 26 Atl. 253. The insured member of such societies has wimself no interest in the fund. He possesses only

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