Frost v. Spitley

This case, of far as is material to the understanding of the appeal, was a bill in equity by Martin Spitley, a citizen of Illinois, against George W. Frost and wife, citizens of Nebraska, Thomas C. Durant, a citizen of New York, and the Credit Mobilier of America, a corporation of Pennsylvania, alleging that the plaintiff was entitled to two lots of land in the city of Omaha, county of Douglas, and state of Nebraska, under a sale on execution against Frost to one John I. Redick, and a conveyac e from Redick to the plaintiff, and praying for a decree quieting the plaintiff's title, and ordering a conveyance to him of the legal estate. Frost and wife, by answer and corss-bill, denied the validity of the sale on execution, and claimed the land as a homestead. After the completion of the pleadings between Spitley and Frost and wife, the case was referred to a master, whose report was comfirmed by the circuit court, and a final decree was entered for Spitley on his bill against Frost and wife, the Credit Mobilier were not served with process, the record did not show publication of the notice ordered to them upon either bill, they did not appear in the cause, no decree was rendered against them, and they were not made parties to the appeal.

The material facts, as appearing by the admissions in the pleadings, the master's report, and the evidence taken in the case, were as follows:

Prior to 1866 the Credit Mobilier, in whose employ Frost was, purchased the land in question, took the title in the name of Durant, its president, and built a house upon it for the use of Frost and his family, under an agreement between the corporation and Frost by which the title was to be conveyed to him upon a final settlement between them. Frost and his family forthwith took possession of the land, and thenceforth occupied it as a homestead, and were in possession when this bill was filed. On November 11, 1870, Redick, who was an attorney, and Frost made and signed the following agreement: 'In consideration of $2,500 as attorney's fees, I agree with Hon. G. W. Frost that I will bring suit, and procure, through the courts or otherwise, to him a good title to the premises he, said Frost, now occupies as his residence in the city of Omaha; and, in case [of] any settlement or arrangement of the suit, then said Frost is to pay in proportion only; and, in case said Frost fails to procure said title at all, then the said attorney is to have a mere nominal fee for his services, to-wit, $100.'

Redick accordingly, on April 29, 1871, brought a suit in equity on behalf of Frost against the Credit Mobilier and Durant in the courts of Nebraska, and in that suit, on March 27, 1876, obtained a decree that upon Frost's paying to said defendants, within 30 days, the sum of $302.71 remaining due from him to them, they should convey the land to him. That sum was not paid within the time fixed, Frost contending that Redick, by the agreement between them, was bound to pay it. On November 11, 1876, said defendants executed a quitclaim deed to Frost, but it was never delivered to him or recorded. Durant afterwards brought an action of ejectment for the land against Frost, which was pending until June 8, 1880, when Redick, having been made a defendant therein on the ground of his having succeeded to Frost's rights in the property under the proceedings stated below, paid that sum, with interest, and the action of ejectment was thereupon dismissed.

On June 26, 1877, Redick brought an action at law to recover his fee of $2,500 against Frost in the circuit court of the United States for the district of Nebraska, in which, on July 30, 1877, he obtained a writ of attachment, on which this land was attached, and was appraised at $6,000; on March 14, 1878, recovered judgment; and on July 1, 1878, obtained an order of sale as upon execution, on which this land was appraised, 'after deducting all prior liens thereon,' at $500, the appraisers adding: 'The said defendant's only interest in said property, as appears by the records of Douglas county, Nebraska, being that of occupancy and possession, we appraise the said interest as above;' and the marshal, on August 24, 1878, after 30 days' advertisement of 'the property described in this order,' sold by auction Frost's interests in these lots to Redick for $350. Frost's solicitor, at the time of the sale, gave notice to the marshal that Frost claimed the land as his homestead, and afterwards moved the court to set aside the sale for this and other reasons. But the court, upon a hearing, confirmed the sale, and directed the marshal to execute and deliver to Redick a deed in the usual form, which was accordingly done; and Redick, on September 8, 1880, conveyed to Spitley, the present appellee.

John L. Webster, for appellants.

No brief filed for appellee.

Mr. Justice GRAY, after stating the case as above reported, delivered the opinion of the court.