DocketNumber: No. 29927
Citation Numbers: 132 Neb. 389, 272 N.W. 217, 1937 Neb. LEXIS 192
Judges: Carter, Day, Eberly, Good, Goss, Paine, Rose
Filed Date: 3/19/1937
Status: Precedential
Modified Date: 10/19/2024
This is a suit in equity brought by the plaintiffs, Fred L. Johnson and Henry W. Johnson, against the defendant, Permelia Jane Loewen, to quiet title to 80 acres of land in Polk county. From a decree quieting the title in plaintiffs as against the claims of defendant, the defendant appeals.
The record shows that on August 29, 1918, Lafayette Dowers died testate leaving surviving his widow, Permelia Jane Dowers, now Permelia Jane Loewen, defendant herein, and two daughters, Celestial Ethel Bond and Leonia Ellen Jacobson. By the provisions of the will, the widow was to have a life estate in the 80 acres herein involved, subject to a provision that her life interest should terminate in the event of her remarriage. The remainder was devised to Leonia Ellen Jacobson by the will. Other lands not involved in this suit were devised to the other daughter, Celestial Ethel Bond, subject to a similar provision providing for a life estate in the widow. The record further shows that on January 31, 1929, Permelia Jane Dowers remarried, and it is conceded that her life estate in the lands herein was terminated at that time. On June 27, 1929, the widow, now Permelia Jane Loewen, and the two daughters entered into a written agreement which the widow now contends conveyed an interest in the 80 acres to her and of which interest she still claims to be the owner. Many contentions are raised by the parties, but we find it necessary only to construe the contract to properly dispose of the case.
The first part of the contract that is material here is as follows: “The second party (the defendant herein) shall have the use of the property in Surprise, Nebraska, during her natural lifetime, and she shall also have control of the real property in Polk county, Nebraska (which includes the land involved herein), and shall have the right to lease
Under this provision of the contract, Permelia Jane Loewen was to have “control” of the 80 acres involved in this action. The giving of control of real estate is not a conveyance of an interest therein. The fact that the duties of Permelia Jane Loewen are specifically set out, together with a provision in the agreement for payment of her services out of the net proceeds of the lands included in it, makes it appear to us that this part of the contract provides for nothing more than a contract of employment. Certainly if it had been intended to convey a life estate to Mrs. Loewen, it would not have been necessary to set out the duties she was to perform, the obligations she was to assume or the compensation she was to receive, for the reason that as to all these the law itself makes provision.
Difficulty arises, however, when we attempt to construe the next paragraph of the contract, which is as follows: “It is not the purpose of this instrument to convey any title to any of the real property hereinbefore described but it is only to give to the second party to this agreement the right to control and use said property during her lifetime.” That this paragraph is ambiguous to such an extent as to require construction is quite apparent. We are faced with the anomalous situation of having one section of the contract clear and concise, with a subsequent section inserted
As a text-writer has aptly said: “It is not the province of the court to alter a contract by construction or to make a new contract for the parties; its duty is confined to the interpretation of the one which they have made for themselves, without regard to its wisdom or folly, as the court cannot supply material stipulations or read into the contract words which it does not contain.” 13 C. J. 525. Ap
Affirmed.