untenable. Defendant was permitted by the decree to keep the child as a monthly visitor for two days at a time. Her right to its custody was granted on the terms prescribed by the court. She was answerable to the court for the performance of the trust confided to her. Her son had abused his child's mother, and had thus lost his rights as custodian of his offspring. Defendant represented the judicial arm of the government in permitting temporary companionship between the father and the child and in returning the latter to the lawful custody of its mother. It was the duty of defendant to exercise her temporary authority in a manner commensurate with her responsibility to the mother and to the state, to keep control of the child during its visit, to report immediately any invasion of her right to temporary custody, and to return the ward to its permanent custodian without any further order from the Over these matters the court had supervisory power, and had jurisdiction to order defendant to bring the child into court. No fine was imposed. The purpose of the imprisonment was to compel obedience. The punishment was remedial. The information states the jurisdictional facts. The making of the court's order and its violation by defendant are charged. It is also charged that, though often requested, defendant refuses to return the child to its mother. While the information does not use the word "willful," the charge as a whole shows clearly that the disobedience was willful. This is sufficient in that respect, where the proceeding is remedial to compel obedience to a judicial order. Nebraska Children's Home Society v. State, 57 Neb. 765, 78 N. W. 267. court. [2] The next complaint is that defendant was deprived of her right to a hearing. On this point she seems to be foreclosed by former opinions. Gandy v. State, 13 Neb. 445, 14 N. W. 143; Nebraska Children's Home Society v. State, 57 Neb. 765, 78 N. W. 267; Gandy v. Estate of Bissel, 5 Neb. (Unof.) 184, 97 N. W. 632. In a recent opinion it was held: "Under the Criminal Code the defendant must be arraigned and be required to plead, and if he stand mute the court is required to enter a plea of not guilty in his behalf. Such is not the rule in a contempt proceeding. In such cases we have held that defendant in contempt, who refuses to plead, may be treated by the court as admitting the charges contained in the information." Hanika v. State, 87 Neb. 845, 128 N. W. 526. fore, in adjudging defendant to be in conIn the present case the trial court, theretempt upon her failure after due notice to answer the citation at the appointed time, or to show sufficient cause why she should not be punished, or to give any reasonable excuse for her failure to comply with the peremptory order, followed precedent. the proposition that the commitment is void, [3] The concluding argument is directed to because defendant was not present in court when the sentence of imprisonment was pronounced. In a case like the present, where the purpose of punishment is to compel obedience to a judicial order for the benefit of failure to answer the citation, there is aua party to the suit, after due notice and a thority for the rule that defendant's presence is unnecessary at the time the commitment is ordered. Barclay v. Barclay, 184 Ill. 471, 56 N. E. 821. An annotator on this subject, in a recent note in 10 L. R. A. (N. S.) 1102, where the cases are collected, says: "An extensive search has failed to reveal any has been set aside merely because the contemcase where a conviction for a civil contempt nor was not in the presence of the court when sentence was rendered. In proceedings for civil contempt, if the alleged contemnor has had notice thereof, the judgment against him will be upheld, in spite of his absence from court at the time it was rendered." Mylius v. McDonald, 10 L. R. A. (N. S.) 1098 (Ex parte Mylius, 61 W. Va. 405, 56 S. E. 602, 11 Ann. Cas. 812). Though absence of defendant at the time the order of commitment is made, after there has been a valid conviction as a remedial measure, is not a ground of reversal, it is the better course, if practicable, to require the presence of defendant, since it leaves open to the last the opportunity to appeal for mercy, to comply with the order violated, or to purge the contempt. The respect due to the courts of justice is more likely to follow the milder course. There being no prejudicial error found, the judgment is affirmed. DEAN, J., not sitting. (180 N.W.) BROOKS et al. v. BROOKS et al. (No. 21084.) 7. Adverse possession 63(4)-Statute does not begin to run until assertion of adverse holding to plaintiff's knowledge. In a proper case, it is competent to show (Supreme Court of Nebraska. Nov. 10, 1920.) that possession of land by a grantor, after the (Syllabus by the Court.) execution and delivery of a deed therefor, is in the nature of a trust for the grantee. The statute of limitations as against the plaintiff, daughter of the grantee, does not begin to run 1. Witnesses 139(6)-Interested party filIng disclaimer held competent as against rep-in such case until the vendor asserts an adverse resentative of decedent. Where a party to an action who, on the face of the record, is interested adversely to the representative of a deceased person, and in the absence of fraud or mistake files a disclaimer of any and all interest in the subject-matter of the action, such person is estopped from asserting any right, interest, or claim in or to the subject-matter of such action, and such party is a competent witness as against such representative. 2. Deeds 108, 194 (2), 208 (3)-Deed effective from delivery; possession of deed by grantee prima facie evidence of delivery; burden of disproving presumption on disputant. "A deed takes effect only from the time of delivery. The possession of a deed by the grantee, in the absence of opposing circumstances, is prima facie evidence of delivery, and the burden of proof is on him who disputes this presumption." Roberts v. Swearingen, 8 Neb. 363, 1 N. W. 305. 3. Deeds 56(1), 194(1)-Constituent elements of delivery stated; delivery presumed from intent. No particular act or form of words is necessary to constitute delivery of a deed. Delivery may be presumed from facts and circumstances which show an intention to deliver. 4. Deeds 194(2) Placing conveyance in grantee's possession raises presumption of delivery. Where a grantor agreed to give certain land to a son, and subsequently executed a deed of conveyance, which was placed in the son's possession, this raises a presumption of delivery by the grantor. 5. Quieting title 29-Laches held not to apply to plaintiff, in view of infancy and ignorance of rights. Laches do not apply to a plaintiff, where infancy during a portion of the time in question and ignorance of his rights account for delay in asserting them, he having exercised due diligence, and where the denial of an equitable claim would work inequity and injustice, and would defeat the original intention of the ancestral grantor. 6. Limitation of actions 100(1), 197 (2) Statute runs only from notice of fraud; excuse for delay sufficient under evidence. The statute of limitations runs only from the time plaintiff became informed, after the exercise of due diligence, that he was being defrauded in his rights. Held, evidence sufficient to excuse delay. holding by some act brought to the knowledge. of such plaintiff. Letton, J., dissenting. Appeal from District Court, Dawson County; Grimes, Judge. Suft by Calvin Raymond Brooks and others against William A. Brooks and others. Decree for complainants, and certain defendants appeal. Affirmed. Cook & Cook, of Lexington, for appellants. W. A. Stewart, of Lexington, H. M. Sinclair, of Kearney, and J. H. Linderman, of Lexington, for appellees. ALDRICH, J. This is an action in equity Calvin Raymond brought by appellees, Brooks, Jennie Marie Floyd, Stella Etna Mainard, and Orlo Bryan Brooks, against the appellants and the appellee Ella Brooks, to quiet title in them to the northeast quarter of section 18 in township 10 north, range 24 west, of the sixth P. M., in Dawson county. Calvin J. Brooks was the grandfather of appellees herein and Ella Brooks was his daughter-in-law. Calvin M. Brooks was the father of appellees and son of Calvin J. Brooks. The record presents the issue, Did the land pass to Calvin M. Brooks by a deed from his father, Calvin J. Brooks? Is the decree sustained by the evidence and the law? The grandfather, Calvin J. Brooks, lived on a farm near North Platte, surrounded by his several sons, each one in possession of a farm their father had given them. Calvin M. Brooks, another son, lived with his family in Pennsylvania. The father wished to have his son who resided in Pennsylvania come to Nebraska, and as inducement offered to give him the land now in litigation. Calvin M. Brooks then moved his family to the home of the father in 1898, and lived there until his death, which occurred shortly after the execution of the deed, when he met with an accident that caused his death. After the death of Calvin M. Brooks, the son, the deed in question was destroyed without the knowledge or consent of plaintiffs, and was never recorded. Ella Brooks, widow of Calvin M. Brooks, files an answer, admitting that she was the wife and is the widow of Calvin M. Brooks and mother of plaintiffs herein, and further answering disclaims any interest, right or title in said premises. The trial court entered a decree quieting title in plaintiffs. The issue is largely one of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fact. Ella Brooks, mother of plaintiffs, testifies that she lived at Sterling, Colo.; that she is the widow of and was the wife of Calvin M. Brooks, that she is mother of plaintiffs, who lived in Pennsylvania until they came west in 1898. She further testifies that her husband received letters from his father, importuning him to come to Nebraska with his family, and make his home with him; that he, the father, would give him the land in question. On or about the first of January, 1898, Mr. and Mrs. Calvin J. Brooks and Calvin M. Brooks went to Cozad and executed the deed for the northeast quarter in question. On their return, Calvin M. Brooks had the deed in his possession, and showed it to his wife, Ella Brooks, who said it was signed by Calvin J. Brooks and his wife. Ella Brooks further testified that her husband placed the deed in a writing desk in the bedroom of the father and mother; that after the death of Calvin M. Brooks the father brought the unrecorded deed out, and discussed it with the widow of the deceased son and burned it, saying he wanted to make different arrangements. Ella Brooks also said that when she returned to Nebraska in 1907, Calvin J. Brooks told her he was going to give the children, plaintiffs herein, the land in question. proper evidence is simply error without prejudice. Sharmer v. McIntosh, 43 Neb. 509, 61 N. W. 727. It has also been held by this court that since the amendment of 1883 (Laws 1883, c. 83), with reference to the competency of an interested party not testifying to a conversation or transaction had with a deceased person, a party adversely interested to the representative of the deceased is not incompetent. Riddell v. Riddell, 70 Neb. 472, 97 N. W. 609. [1] But it will be conceded that where persons, who are even parties to the action, but not to the issue, disclaim any interest in the subject-matter, they are competent witnesses. Martin v. Martin, 118 Ind. 227, 20 N. E. 763. It appears of record in the instant case that Ella Brooks filed a disclaimer, denying every interest and claim of every character in and to the subject-matter of this case. Therefore she has forever barred herself from hereafter setting up any claim of any character antagonistic to the results of this suit. Equity has very well said that in a case of this kind death closes the lips of the one and the law those of the other. It is axiomatic, then, that if Ella Brooks is forever barred from hereafter setting up any claim of any character in the event of this suit, the record that she It is claimed that Ella Brooks' evidence made here in the instant case will be a comis incompetent, as she had a direct legal in-plete bar and final determination of her each terest in the result of the action, and that and every claim. Therefore the testimony she was the representative of a deceased per- of Ella Brooks was material and competent, This objection is based upon a section and properly received. of our statute (section 7894, Rev. St. 1913), and presents a law question which we may as well determine now as any other time. When persons are parties to an action, but not to the issue, and disclaim any interest in the subject-matter, they are competent. In the case of Mester v. Zimmerman, 7 Ill. App. 156, the appellate court of Illinois said that"A son of the mortgagor who had been made a party defendant to the foreclosure proceedings, but who by his answer disclaimed all interest in the event of the suit, and who had formally renounced the legacy left him by the mortgagor in his will, is a competent witness upon the question of usury, when called by the other defendants." son. Also in the case of New American Oil & Mining Co. v. Troyer, 166 Ind. 402, 76 N. E. 253, 77 N. E. 739, the Supreme Court of that state said: "Such a pleading of itself operates as an estoppel, and, between the parties and their privies, is an absolute bar to any further assertion of the right renounced." See Greeley v. Thomas, 56 Pa. 35; Jordan v. Stevens, 55 Mo. 361, 12 Enc. of Evi. 769, note. See, also, Denny v. Schwabacher, 54 Wash. 689, 104 Pac. 137, 132 Am. St. Rep. 1140; Fenton v. Miller, 94 Mich. 204, 53 N. W. 957. It is also true that in a case tried to the court without a jury the admission of im [3, 4] Another legal proposition raised is, Was there a delivery of the deed by the father to the deceased son? It will be admitted as a matter of law that no particular act or form of words or ceremony is necessary to constitute a delivery of a deed. In this case a delivery may be presumed from the grantee's possession of the instrument. That the father and mother went to Cozad for the express purpose of executing and delivering to the son, Calvin M. Brooks, a deed to this land in question, is apparent, as Calvin M. Brooks had possession of the deed upon his return. This deed was a conveyance of the title to the identical land he had agreed to give to the son Calvin M. Brooks. Some very respectable text-writers have held that When "a grantee has possession of the deed, this raises a presumption of its legal delivery to him on its date." Lawson, Presumptive Evidence (2d Ed.) 491. [2] This court has also held that "A deed takes effect only from the time of delivery. The possession of a deed by the grantee, in the absence of opposing circumstances, is prima facie evidence of delivery, and the burden of proof is on him who disputes this presumption." Roberts v. Swearingen, 8 Neb. 363, 1 N. W. 305. The destroying of this deed by Calvin J. Brooks, and his statement that he wanted to make other arrangements, is virtually an (180 N.W.) admission on his part of the execution and sequences of the original intent of the dedelivery of the deed. ceased Calvin J. Brooks. The possession of a deed by the grantee, it is held in Strough v. Wilder, 119 N. Y. 530, 23 N. E. 1057, 7 L. R. A. 555, is prima facie evidence of delivery, where there is nothing to impeach the bona fides of the possession. We think the trial court was right in its finding that the deed to the land here was to Calvin M. Brooks, and that after the death of Calvin M. Brooks, the father destroyed the deed in furtherance of his purpose to make other arrangements. In view of what we have hereinbefore said we conclude the trial court was justified in finding that there was a delivery by the grantor to the grantee of the title to the land in question, and this finding does equity to the plaintiffs, and is in accordance with Nebraska decisions and other cases herein cited and discussed, and is in furtherance of the declared intent or wish of the father, Calvin J. Brooks, to settle his sons about him. It is fairly well established in this record that the father transferred this land to his son Calvin M. Brooks, that it was in furtherance of an original purpose of his to locate his sons around him, and if this deed is permitted to stand it simply fulfills his original intention, and it is sustained by the decedent laws of the state. [5] There are other questions here, but we now purpose to take up the question of the statute of limitations as applied to the widow, Ella Brooks, and her daughter Stella E. Mainard. As to Ella Brooks the statute of limitations cannot run because she is here under oath with a disclaimer of every kind and character in the event of this suit. As to. the daughter, Mrs. Mainard, throughout a greater portion of the time after the death of her father she was under age, and the statute of limitations could not apply prior to the time she was 18 years of age. In 16 Cyć. 168, it is said: [7] It should be noted that during the greater part of the period in which this plaintiff, Mrs. Mainard, lived in Nebraska she was a child, and it was only a few years after she became of age that she learned that she had been defrauded out of this land in controversy. The neighbors, after the death of her father, began to talk concerning the gift of the land in controversy to the father, and also of the plaintiffs herein coming into possession and ownership of this land. Their claim and their rights here are simply the natural claims and natural rights resulting from and normally included in the disposition made by Calvin J. Brooks, the grandfather, in his lifetime. From a review of the authorities cited we conclude that the statute of limitations does not apply here, and the doctrine of laches has no force and effect, for its application here would work inequity, and injustice. We concur in the finding of the trial court, and hold that this case must be affirmed. Evidence examined, and held, not to show such contributory negligence on the plaintiff's part, in driving at excessive speed and without warning signals, as to establish, as a mat ter of law, that her negligence was the prox imate cause of the accident, or that it was "Infancy, when a right accrued, may excuse more than slight in comparison with the negignorance of such right and consequently aligence of the defendant, within the meaning of failure to assert it promptly after attaining the comparative negligence statute (Rev. St. majority." 1913, § 7892). [6] In Kern v. Howell, 180 Pa. 315, 36 Atl. 872, 57 Am. St. Rep. 641, it is held that the possession of land by the vendor after the execution and delivery of a deed therefor is a trust for the vendee, and the statute of limitations does not begin to run until the vendor asserts an adverse holding by some unequivocal act brought to the knowledge of the vendee. It is also the law that if a parent purchases land in the name of his son, the purchase is deemed prima facie an advancement. This is the precise situation under the facts in this case. The statute of limitations cannot bar the interest of this plaintiff, Mrs. Mainard, because to invoke such a rule would be doing inequity, and would defeat the con Negli 2. Municipal corporations 706 (6) Where, in an action for damages arising from a collision between vehicles at a street intersection, there is evidence that the defendant's servant was driving toward the intersection at reckless speed, keeping no look out, but preoccupied in looking back toward another vehicle, with which he was racing, the question of the comparative negligence of the parties and the proximate cause of the accident is for the jury, although there is evidence from which the jury would be justified in believing that the plaintiff was also negligent in driving at excessive speed and failing to give warning signals. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. Trial 28 (2) Order directing view is within discretion of court, regardless of consent of one party. curb to curb, is comprised in the intersection, and this space is open to the east on Poppleton avenue and to the north and south on The granting or refusal of an order direct-Thirty-Third street. Just before the accident ing a view by the jury of the locality of the the defendant's delivery truck was approachaccident rests within the sound discretion of ing the intersection from the north, and the the trial court, and the fact that one party conplaintiff was driving her father's automobile, sents to the request of the other that such view be directed will not control the discretion with a party of friends, on Poppleton avenue toward the intersection from the east. of the court in that regard. The plaintiff alleged and testified that as 4. Trial 28 (2)-Court may rescind order she entered the east side of the intersection directing view. The fact that the trial court in the first instance directs a view of the premises will not deprive it of power to rescind the order, if, within its sound discretion, the granting of a view finally seems inadvisable. 5. Trial 28(2)-View may be denied where not necessary, or where not shown that conditions have not materially changed. It is not abuse of discretion to deny a view of the premises if it does not appear that such view is necessary to a clear understanding by the jury of the physical conditions, or where it is not made affirmatively to appear by the party requesting the view that no material change has occurred in the conditions of the locality in question. 6. Trial 261-Omission to instruct not error, in absence of request and submission of proper instruction. she noticed the defendant's truck approaching from the north at so excessive a speed and so obviously out of control that she concluded there was no way to avoid a collision, except to go directly west across the intersection, ahead of the truck, and get out of its way by forcing her car up on the park space beyond the curb line on the west side of Thirty-Third street. She accordingly applied the power and shot across the intersection to the southwest, but was unable to get her car off the street and beyond the curb before it was struck by the defendant's truck. The defendant, on the contrary, in its pleading and evidence, denied any unlawful speed or lack of control on the part of its truck driver, and contended that the accident was caused by the undue speed at which the plaintiff was driving when she entered the intersection, and by the fact that she gave no signal or warning, although her view to the north on Thirty-Third street was obscured by a high bank at the northeast corner of the intersection. The defendant not only asked It is not error for the trial court to omit to give a specific instruction bearing upon a certain ground of contributory negligence set up as a defense in the answer, unless the defendant tenders a request for an instruction upon the omitted issue, which fairly reflects and calls attention to it, and is a substantial- to be dismissed from any liability to the ly correct statement of the law pertaining plaintiff, but counterclaimed for damages to thereto. the truck. [1] The controversy at the trial was waged, Appeal from District Court, Douglas Coun- for the most part, upon conflicting evidence ty: Wakeley, Judge. Action by Frances J. Robison against the Troy Laundry. Judgment for plaintiff, and defendant appeals. Affirmed. E. A. Conaway, of Omaha, for appellant. as to the speed at which the respective motor vehicles were being driven, and the record showed a decided variance in the testimony upon that point. The defendant argues, upon this appeal, that the evidence is insufficient to sustain the verdict. We are convinced, however, that there was abundant testimony which, if the jury saw fit to credit DORSEY, C. Frances J. Robison recov-it, would justify a finding that the defendered a verdict and judgment against the de- ant's truck was being driven toward the infendant, the Troy Laundry, for damages for personal injuries sustained in a collision between an automobile driven by her and a motor delivery truck belonging to the defendant and operated by one of its employees. tersection with the utmost recklessness. It was shown by several witnesses that the driver of the truck was apparently racing, and, as he neared the intersection, was looking backward toward the rival car, instead of moderating his speed and looking in the direction of Poppleton avenue, as was his duty. The accident occurred at the intersection in the city of Omaha, where Thirty-Third Street, running north and south, crosses Pop- The plaintiff, it is true, admits that she pleton avenue, running east and west. Pop- was driving toward the intersection at a pleton avenue does not continue directly west speed of 12 miles per hour, and there was tesfrom its intersection with Thirty-Third timony from which the jury might have gathstreet, but jogs to the north. The intersec- ered that the speed of her car, going toward tion in question is therefore closed to the Thirty-Third street, was as much as 25 miles west by the west curb line of Thirty-Third per hour. The jury might have found that street. A space about 30 feet square, from she was not cautious enough in reducing her For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |