Page images

a mere power of appointment. Rollins v. vide that the fund is established for the beneMcHatton, 16 Colo. 203, 27 Pac. 254; Hellen- fit of the widow, children, orphans, relatives, berg v. District No. 1, 94 N. Y. 580. Jere or dependents of the deceased member; and, Donovan had no property in the certificates. where such provision is made, the beneficiary He had no right or interest therein upon designated must be in one of the classes which he could impress a trust. Upon his mentioned. Elsey v. Association, 142 Mass. death the money arising from the certificates 224, 7 N. E. 814; Presbyterian Mut. Assur. became absolutely the property of the bene- Fund y. Allen, 106 Ind. 593, 7 N. E. 317; ficiaries, to do with as they saw fit. The Supreme Council v. Perry, 140 Mass. 550, 5 widow could use the money to pay such of N. E. 634; Skillings v. Association, 146 Mass. her husband's debts as she wished to pay, 217, 15 N. E. 566. In Skillings v. Association or she might retain it all for her individual the court says: “A person whose only relause. The societies paying the money were tion to the deceased member is that of a organized to “issue certificates of indemnity creditor is not a person dependent upon him calling for the payment of a certain sum, within the meaning of these statutes, and known and defined, in case of death,

the promise to pay the plaintiff is void. Such to the widow, orphan or orphans, or other a promise is beyond the powers of the assopersons dependent upon such members." ciation, and contravenes the intention of the Comp. St. 1895, c. 16, $ 198. The constitution statute under which the association was orof the Ancient Order of United Workmen ganized. The plaintiff, therefore, cannot provides that "each member shall designate maintain an action on this promise, either for the person or persons to whom the beneficiary his own use or for that of any other person." fund due at his death shall be paid, who shall, These fraternal beneficiary societies, in their in every instance, be one or more members present form, are comparatively recent creaof his family, or some one related to him by tions. They respond to a popular demand for blood, or who shall be dependent upon him." protection to dependents at reasonable cost. Const. A. 0. U. W. art. 6, § 4. The by-laws They provide what is often called the “poor of the Modern Woodmen of America provide man's insurance." In most, if not all, the that “the objects of this fraternity are to primary object is to provide substantial benepromote true neighborly regard and fraternal fits, in case of the death of the member, to love, to bestow substantial benefits upon the the widow, orphans, or dependents of such family, widow, heirs, blood relations, affi- member; to provide means for the family anced wife, or person dependent upon the when the main support is gone. Their purmember, and such others as may be per- poses are laudable. They provide means to mitted by the laws of the state of Illinois." maintain the widow, and feed, clothe, and By-Laws M. W. A. div. 1, $ B. None of these educate the orphans, and thereby relieve the designations include creditors, so that the in- state of burdens which otherwise might fall sured did not have the right, even, to make upon it. The provisions for the creation and a formal change designating his creditors as payment of these sacred funds to the propbeneficiaries. The laws of this state govern- erly designated beneficiaries should receive ing such societies preclude creditors of a such liberal construction that the widow, the member from participation in the fund so orphan, or other dependent may receive the created. The statutes of the states in which intended benefit. these societies were organized not being In determining 'who is entitled to receive pleaded, we presume they are similar to our the benefits of the provisions of societies of

The statute or charter of the order this kind, it is the duty of the court to condesignating beneficiaries controls. Britton v. strue the statute and their rules and regulaSupreme Council, 46 N. J. Eq. 102, 18 Atl. tions liberally, and in such manner as to 675; Association v. Gonser, 43 Ohio St. 1, 1 carry out the beneficent purposes sought to N. E. 11; Caudell v. Woodward, 96 Ky. 616, be accomplished. Ballou v. Gile, 50 Wis. 614, 29 S. W. 614. A person not of the class for 7 N. W. 561; Supreme Council v. Perry, whose benefit a mutual benefit association is supra. It is true, Mrs. Donovan did assent organized cannot be a beneficiary. Wolf v. to her husband's request to pay his creditors, District Grand Lodge, 102 Mich. 23, 60 N. W. but, since he failed to provide the trust fund 445; Britton v. Supreme Council. supra; out of which payment might be made, the Alexander y, Parker, 114 Ill. 355, 33 N. E. plaintiffs cannot recover from her as trustee. 183; Society v. Willson (Ill. Sup.) 52 N. E. After her husband's death, there being no 41. The beneficiaries which may be desig- proper change of beneficiary, half the pronated are but few, and creditors of the mem- ceeds of the certificates in question became ber are not among them. Even though Jere absolutely the money of Mrs. Donovan, and Donoran had complied with all the provisions the promise she made was at most but a and forms required by the societies respecting promise to pay her husband's debts out of a change of beneficiary, plaintiffs could not her own property. There is no claim that have been named, since creditors are not the promise was in writing, and it is a fawithin the limitations either of the statute or miliar doctrine that a promise to answer for of the by-laws of either society. Either the the debt, default, or misloings of another statutes of the state or the charter or by. is within the statute of frauds, and, to be laws of mutual benefit societies usually pro- binding, must be in writing, signed by the


[ocr errors]

party to be charged therewith. Comp. St. Troxell's subdivision of lot 3 of Geise's addie. 32, § 8. Mrs. Donovan cannot be held tion to the city of Omaha, executed by Wilin this action, either as trustee or individu- liam Stevens, one of the defendants. Sevally, for plaintiffs' demands. The decree of eral judgment creditors of Stevens were made the trial court is therefore affirmed.

defendants, who appeared in the cause and set up their judgments. The Somerset Trust

Company presented an answer and cross peTROXELL V. STEVENS et al.

tition, praying the foreclosure of a tax-sale

certificate. William J. Stevens filed an an(Supreme Court of Nebraska. Jan. 5, 1899.)

swer, pleading a counterclaim for damages DEED - AFTER-ACQUIRED INTEREST ACTION ON COVENANT-OCCUPYING CLAIMANTS-Evictiox.

for breach of the covenant of warranty in a 1. By virtue of section 51, c. 73, Comp. St.,

deed to the mortgaged premises made by an after-acquired interest in real estate by a plaintiff to Richard S. Maulsby, said Stevens' grantor inures to the benefit of the grantee immediate grantor. Jennie E. Stevens anwhen the deed purports to convey a greater interest or estate than the grantor owns at the swered, asserting a lien upon the premises by time of the conveyance.

reason of the assignment to her by said Wil2. A grantee in a quitclaim deed takes only liam J. Stevens of his rights and interests in the grantor's existing interest, and the after- a decree rendered in his favor, under the acquired title of his grantor in the property does not pass to him.

statute, in the case of Englebert against 3. An after-acquired title does not inure to Troxell et al., in the district court of Dougthe benefit of the grantee, where the deed of las county, for lasting improvements placed conveyance under which he claims has been

on the lots covered by the Troxell mortgage. canceled and annulled by a decree of court. 4. An action cannot be maintained on a cor

Upon the trial the court below found, inter enant of warranty of title, where it appears alia, that William J. Stevens had sustained there has been no actual eviction or surrender damages by reason of the breach of plaintiff's of possession of the granted premises by reason of a paramount title.

covenant of warranty in the sum of $1,614.67, 5. A decree canceling a deed under which a from which amount was deducted $1,312.71 grantee asserted title, the appointment of ap- due on the mortgage, and a decree was renpraisers, under the act for the relief of occupy- dered against Troxell in favor of William J. ing claimants (chapter 63, Comp. St.), to assess the value of the lasting improvements of the

Stevens for $1.281.96. The court also awardgrantee, and the confirmation of the report of ed Jennie E. Stevens a lien on the premises the appraisers by the court, alone do not for lasting improvements in the sum of $1,amount to an eviction, where the owner of the

613. There are other provisions in the de paramount title has neither elected to accept the value of the land, nor to pay the occupant

cree, which need not now be stated. Plainthe value of his improvements, and the physical tiff has appealed. The sole controversy in possession of the latter has not been disturb

this court is between Troxell and William J. ed. 6. Covenants of warranty in a deed for the

and Jennie E. Stevens. conveyance of real estate, not broken when It is disclosed that one Francis Leon Englemade, pass with the title, even though the sub-bert, a minor, was the former owner of the sequent conveyances are by quitclaim deeds. 7. Where the appraisement has been made

lot described in the mortgage; and while reunder said act, the unsuccessful occupant can

maining such owner he executed a deed connot be ousted of possession of the premises un- veying the same and other real estate to one til the successful owner has elected to pay, and George E. Pritchett, who conveyed the prophas paid, the appraised value of the improvements, or elected to accept the value of the

erty to Adolph Meyer. The latter sold and land, and the occupant has refused to pay the conveyed to John I. Reddick, who executed a same.

deed to the premises to Troxell, the plaintiff 8. The occupant may not have the land and

and appellant herein. On November 10, 1887, improvements sold to pay the parties the value of their respective interests.-at least, not until

by deed of general warranty he conveyed to a time has been fixed by the court within which one Richard S. Maulsby, who, with covethe successful owner may elect whether he will nants of warranty, deeded the lot to Peter accept the value of the land without the im

Ulrich, and the latter subsequently quitprovements, or to pay the value of the improvements, and he has refused to make such claimed his interest in the property to his election.

said grantor. Afterwards Maulsby executed (Syllabus by the Court.)

a conveyance to the premises to William J. Appeal from district court, Douglas county; Stevens, and the latter subsequently gave Duffie, Judge.

the mortgage in suit. On August 17, 1893, Action by Benjamin F. Troxell against Wil- William J. Stevens, by deed of quitclaim, liam J. Stevens and others. Judgment for conveyed said lot 1 to Jennie E. Stevens. On defendants, and plaintiff appeals. Reversed. November 14, 1889, shortly after Francis Warren Switzler, for appellant. H. L. Day,

Leon Englebert had reached his majority, he J. Q. Burgner, Meikle & Gaines, Silas Cobb,

instituted in the district court of Douglas Bartlett, Baldrige & De Bord, W. H. De

county a suit against said George E. PritchFrance, E. W. & Wm. Simeral, Wright &

ett and the other persons named to whom the Thomas, and Montgomery & Hall, for appel

lot had been conveyed, down to and includlees.

ing William J. Stevens, to cancel and set

aside his deed to Pritchett, and the other conYORVAL, J. This is a suit by Benjamin F. veyances, because of his minority at the Troxell to foreclose a mortgage on lot 1 of time his deed was executed. The district court rendered a decree canceling all the er reason. All the deeds constituting their deeds, and ordered an appraisement of the claim of title, beginning from the one to real estate and lasting improvements, in ac- Pritchett, and all the subsequent mesne concordance with the statute enacted for the veyances down to and including the deed to benefit of occupying claimants. The apprais- William J. Stevens, were canceled and anal was made in accordance with the decree, nulled by the decree in the case of Englebert which the district court confirmed. Troxell v. Troxell, supra. The several deeds, there. prosecuted an appeal, and the decree was af- fore, were no longer in existence for the purfirmed by this court. Englebert v. Troxell, pose of conveying or supporting title, and 40 Xeb. 195, 58 X. W. 852. Shortly after hence were wholly insufficient to transmit the said decision, on May 7, 1894, said Francis after-acquired estate to the Stevenses. The Leon Englebert, by his attorney in fact, con- | deeds subsequent to the decree in the case veyed the mortgaged premises to one William above mentioned, from Englebert to Reddick, A. Reddick, who on October 26th of the same and from Reddick to Troxell, vested the paryear executed a deed for the same to Trox- amount title in the latter, in whom, so far as ell. Subsequently the present suit was in- this record shows, it still remains. The prostituted in the court below.

curing of the Euglebert title by this plaintiff It is argued on behalf of plaintiff that there was alone insufficient to defeat an action for has been no breach of his covenant of warran- a breach of his covenant of warranty. If ty, because he defended the title to the lot plaintiff desires to invest the title to the lot in the district court, as well as here on ap- in William J. Stevens, and make good his peal, as he agreed to do by the covenant of covenant, he can effectuate such purpose by his deed, and when defeated in the court of an appropriate conveyance. last resort he purchased the Englebert title; It is insisted that the covenant has not thereby preventing an ouster of William J. been broken, inasmuch as neither William J. Stevens and his grantee, Jennie E. Stevens. Stevens nor Jennie E. Stevens has been Section 51, c. 73, of the Compiled Statutes is evicted by, nor have they surrendered posinvoked to support this line of argument, session of the premises to, the owner of the which section declares: “When a deed pur- paramount title. This court is unalterably ports to convey a greater interest than the committed to the doctrine that no recovery grantor was at the time possessed of, any can be had on the covenant of warranty, after acquired interest of such grantor to the unless there has been an actual eviction, surextent of that which the deed purports to con- render, or attorning by reason of the parvey, shall accrue to the benefit of the grantee: amount title. Real v. Hollister, 20 Neb. 112, provided, however, that such after acquired in- 29 N. W. 189; Cheney v. Straube, 35 Neb. terest shall not inure to the benefit of the 521, 53 N. W. 479; Trosell v. Johnson, 52 original grantor, or his heirs or assigns, if the Neb. 46, 71 N. W. 968; Hampton v. Webdeed conveying said real estate was either a ster (Neb.) 77 N. W. 50. The wisdom and quitclaim or special warranty,” etc. This soundness of this rule may well be doubtpiece of legislation makes an after-acquired in- ed, but it has been so often announced and apterest in real estate by a grantor inure to the plied by this court as to become a settled benefit of the grantee only where the deed pur- rule of property, and should be adhered to by ports to convey a greater interest or estate the court until the rule is changed by approthan the grantor at the time owned. If he priate legislation. In the case in which we merely conveys a present title or interest, are dealing there is an entire failure of proof then the title which he subsequently obtains of actual eviction or surrender of possession. to the property does not pass to the grantee. William J. Stevens or Jennie E. Stevens has Manifestly the statute has no application been, and now is, in the actual occupancy of where the transfer is by a deed of quitclaim. the lot. The owner of the paramount title Pleasants v. Blodgett, 39 Neb. 741, 58 V. W. since the decree in Englebert v. Troxell has 423. If the provision quoted has any bearing asked neither of them to vacate the property on the present controversy, it is obvious that or attorn to him. They have not pleaded an it did not have the effect to vest in either actual eviction or surrender, unless said deWilliam J. Stevens or Jennie E. Stevens the cree amounts to that. The averments in the subsequently obtained interest of Englebert answer upon that subject follow: "That by in the property, since all the conveyances virtue of the said paramount title of the said through which they claimed title did not pur- Francis Leon Englebert, and contrary to said port to transfer the fee. The record shows deed and covenants of the deed as aforesaid, that Jennie E. Stevens asserts title through a this defendant, after his entry into possession quitclaim deed from William J. Stevens, and of said premises under his said deed of conalso that one Peter Ulrich, a grantor in one veyance as aforesaid, was ousted and disposof the conveyances in his claim of title, on sessed of said premises, and evicted from the November 8, 1888, made a quitclaim deed to same, by due course of law, by virtue of certhe lot to Maulsby; so that, under the stat- tain proceedings duly instituted in the disute, the after-obtained Englebert title did not trict court of Douglas county, state of Nereach to Jennie E. Stevens, or inure to her braska, wherein the said Francis Leon Englebenefit. This after-acquired title did not pass bert was plaintiff and Benjamin F. Troxell and either to her or William J. Stevens for anoth- others were defendants, wherein it was adjudged that the plaintiff herein, said Benja- proved by the court, and Stevens had paid the min F. Troxell, did not have a good and suf- same, then there might be ground for an ar

ficient title to said premises at the time of gument that there had been a technical evic• the said conveyance of said premises by him tion by the paramount title, although he re

to the said Richard S. Maulsby. This defend- mained in the physical occupancy of the premant has therefore sustained damages by rea- ises. But this is not such a case. Stevens had son thereof in the sum of $1,500, and 7 per not as yet lost the land. He or his grantee cent. interest thereon from December 10, may never be dispossessed, and possession 1888, together with the sum of $500, incurred may ripen into a perfect title. Under the ocas expenses by this defendant in defending cupying claimants' act, Stevens could not be against said suit of said Englebert as afore- ousted of possession until there had been an said, less the said sum of $1,000 paid by plain- election to receive the value of the property tiff thereon by means of his said payment of or pay the value of the improvements, and a his said promissory note, as set out in his pe- compliance therewith; but as there has been tition herein." Thus, it will be seen the de- no election, and as Stevens could not be evictfendants pleaded the decree in the case of ed until he had been paid for his improveEnglebert against Troxell as constituting an ments, it is obvious that the decree in Engleeviction, and the proofs make no stronger case bert v. Troxell does not constitute an eviction, against this plaintiff than is stated in the or surrender to the paramount title, and hence foregoing excerpt from the answer. The same a cause of action for breach of covenant of decree was pleaded and proven in the case of warranty has not yet accrued. Troxell v. Johnson,-an action for breach of William J. Stevens cannot recover on the the covenant of warranty in the deed covering covenant of warranty for another reason. other property described in the conveyance Prior to the bringing of this suit he executheretofore mentioned from Troxell to Mauls- ed and delivered a quitclaim deed to the by; and yet this court held that, as there had premises to Jennie E. Stevens, thereby conbeen no actual eviction or surrender of pos- veying to her any cause of action he may session on account of the Englebert title, an have for breach of covenant of warranty. action on Trosell's covenant of warranty The covenant in Troxell's deed was not browould not lie. That decision controls the dis- ken when made. He at that time possessed position to be made of this case on the branch title to the lot, which was perfect until Englewe are now considering, except in one par- bert disaffirmed his conveyance to Pritchett, ticular. In that case the reported decision which act of disaffirmance was subsequent to does not show that appraisers were appointed, the making of the deed by Troxell to Maulsunder the occupying claimants' act, to appraise by. The rule is that covenants of warranty the lasting improvements and the value of the in a deed for the conveyance of real estate, premises, while it is established by this rec- not broken when made, pass with the land, ord that such appraisement was made in con- notwithstanding the subsequent conveyances formity with the statute on the subject. And are by quitclaim deeds. Walton v. Campbell, it is strenuously urged that those proceedings 51 Neb. 788, 71 N. W. 737. So, in any view, in the decree of Englebert V. Troxell are the decree allowing William J. Stevens damequivalent to an actual eviction, or actual sur- ages for breach of covenant of warranty is render to the owner of the superior title. In erroneous. the light of the adjudications of this court, We pass now to the consideration of the we cannot so hold. It is true, in Englebert v. question whether Jennie E. Stevens is enTroxell the decree provided for the issuance titled to a decree for the sale of the premof a writ of ouster, and the value of the real ises to pay the value of the lasting improveestate, as well as the value of the lasting im- ments placed on the lot by her grantor. As provements, was assessed by appraisers duly heretofore stated, the value of the real estate selected for that purpose. But no writ of res- without the improvements, and the value of titution has ever been demanded by any own- the improvements alone, were appraised uner of the Englebert title, nor has such process der chapter 63, Comp. St., entitled “Occupy. ever issued. The physical possession of the ing Claimants." The sections of said chappremises by Stevens has never been disturbed. ter which have a bearing on this branch of No election, prior to this suit, had ever been the case read as follows: made by the owner of the paramount title to "Sec. 7. If upon the final hearing there either accept the value of the land, or to pay shall be found a balance in favor of the ocStevens the amount assessed for the improve- cupant or unsuccessful claimants, the person ments, as the statute relating to occupying proving the better title may either demand claimants permitted him to do. Nor does the of the occupant or claimant the value of the decree in the case of Englebert v. Troxell fix real estate without improvements as shown the time in which such election should be by the appraisement, and tender a general made. The owner of the paramount title may warranty deed for the real estate in question never avail himself of the benefit of the stat- to such occupant or claimant, or he may pay ute, or disturb the occupant of the lot in his into court the balance so found due such ocpossession thereof. Had the owner of the cupant or claimant within such time as the Englebert title elected to accept the value of court shall allow in its final decree. the land as found by the appraisers and ap- “Sec. 8. If the successful claimant shall

[ocr errors]

elect to pay and does pay to the occupant or be sold to satisfy the appraised value of the claimant the balance found due him on the improvements. The owner of the paramount final hearing within such time as the court title is given the right of election, and until shall direct, then a writ of possession shall he has done so, or the time has elapsed in • be issued in his favor against such occupant which he may take such step, he is not in or decree shall be entered against such un- default, and manifestly it will be contrary successful claimant as the case may require. to the spirit of the law that the lot should

"Sec. 9. If the successful claimant shall be sold to pay the value of the improvements. elect to receive the value of the real estate The owner of the paramount title, doubtless, without improvements, to be paid by the oc- might waive the value of the lot, and by apcupants or claimant within such time as the propriate deed convey the title to the occourt shall direct, and shall tender a general cupant, in which case the latter could not ask warranty deed for such real estate to the oc- for improvements. The statute forbids that cupant or claimant, or such occupant or claim. the occupant shall be dispossessed until he ant shall refuse or neglect to pay said sum has been compensated for the value of the of money to the successful claimant within improvements. But in the present case the the time allowed by the court for that pur- lien for the improvements is junior to the pose, then such successful claimant shall de- mortgage given by William J. Stevens, and posit with the clerk of the court the amount also the lien for taxes. found due the occupant or claimant, and The decree of the district court in the presthereupon a writ of possession shall be issued ent case is reversed, and the cause remandin favor of such successful claimant or de- ed, with instructions to enter a decree forecree shall be entered in his favor as the case closing plaintiff's mortgage, as well as the shall require.

tax lien in favor of the Somerset Trust Com“Sec. 10. The occupant or claimant shall in pany giving the lien for taxes priority over no case be evicted from possession, or de- the mortgage, and decree that William J. prived of his right in the premises, except as Stevens has no claim or interest in the propprovided in the two preceding sections, and erty; that Jennie E. Stevens has a lien on the in case the successful claimant shall neglect lot for the value of the lasting and valuable to elect to take said real estate with im- improvements placed thereon, as ascertained provements, or to convey the same to the and found by the appraisers, and is entitled occupant or claimant within such time as to retain the possession of the lot until said the court shall direct, then decree shall be en- sum is paid, or the land is sold as provided tered in favor of the occupant or claimant by decree; that the plaintiff has the option upon his payment into court the value of the to pay the value of the improvements at any real estate without improvement. Such de- time within 60 days after the entry of the decree shall have the effect to transfer and cree, and upon the payment thereof to the convey to such occupant or claimant the title clerk of the district court, for the use of Jenand rights of the successful claimant."

nie E. Stevens, all her right and claim for By the provisions of said sections, Engle- the possession of the land and improvements bert had the right to elect to demand from thereon shall be thereby extinguished, and the occupant the value of the lot in question the plaintiff shall immediately be let into without the improvements, as determined by | possession of said property, or plaintiff may the appraisers in the case of Englebert v. within said time elect to receive the value of Troxell, and approved by the court, and ten- the land without the improvements, and in der a general warranty deed for the prem- case he do so, and Jennie E. Stevens complies ises to such occupant, or pay the amount therewith by paying such value, plaintiff found by the appraisers for valuable and shall forthwith execute a deed of general lasting improvements placed upon the lot; warranty conveying said lot to her, or plainand in case he chose the second alternative, tiff, as a third alternative, may within said and complied therewith within the time that time execute and deliver such deed without should be named by the court, he was en- demanding the value of the lot. And, if said titled to a writ to dispossess the occupant, or plaintiff shall decline to exercise any of said the rendition of a decree in his favor, as the options within the time specified, then, upon nature of the case should suggest. Englebert the motion of either of said plaintiff or Jenhad the option to either accept the assessed nie E. Stevens, the district court will direct value of the land without the improvement. said land, with improvements thereon, to be and keep the lot; and Troxell, being the own- sold, as upon execution, to the highest bider of the paramount title, is subrogated to the der for cash in hand, and upon the confirmarights of Englebert in the premises. The tion of such sale a deed shall be made to the district court, in confirming the report of the purchaser for the property, which shall have appraisers in Englebert v. Troxell, did not the effect to vest in him all the right, title, (nor has it since) fix a time within which the estate, and interest of the said plaintiff and election should be made, as the statute con- Jennie E. Stevens in said lot and improvetemplates; and until such tiine has been des- ments thereon, and said purchaser shall be ignated, and there has been a failure to elect let into the possession of the same. After within the period so granted, the occupant is paying costs of the suit, the remaining proin no position to demand that the premises | ceeds of the sale of the land and improve

« PreviousContinue »