
    Jessie Briley and Scott Briley v. Shelby Briley, et al., Defendants. William Briley, Defendant and Appellant.
    Evidence fails to show delivery of deed.
    
      Appeal from Fremont District Court. — Hon. Walter I. Smith, Judge.
    Saturday, May 18, 1895.
    Action for -the partition of certain real estate.
    
    Affirmed.
    
      Geo. F. Draper for appellants,
    
      W. F. Mitchell for appellees.
   Kinn-e, J.

I. Plaintiffs and defendants are the heirs at lalw of A. J. Briley, who died -intestate in March, 1890. Plaintiffs claim that A. J. Briley died seized of the following real estate: Southwest quarter of -northeast quarter of section 33, township 70, range 43, and southeast quarter of southwest quarter of section 24, township 70, range 43. They ask that partition be made of this land, and that it be sold, and aver that it cannot be divided. In 'an amendment to the petition, it is averred that deht-s exist against the estate of A. J. Briley in excess of the value of the personal property; and it is prayed that, from the funds arising from the sale, sufficient he turned over to the administrator to pay said debts, and that the balance be divided among said heirs. William Briley answered, admitting the death of A. J. Briley, and that the respective parties were his heirs, and denying other averments in the petition. He alleges that he is the absolute owner of the land in section 24 which plaintiffs claimed belonged to A. J. Briley’s estate; that he and his brother Shelby purchased ‘and paid for this 'land, 'but because of this defendant’s minority the saiid A. J. Briley advised that the legal title should be in his name, with the understanding that A. J. Briley would subsequently convey -the land.to them; that from the time of their purchase said defendant and his brother Shelby have had the -actual, open, notorious, and adverse possession of said real estate, under claim of right; that in April, 1874, said A. J. Briley made and delivered to them a deed for said real estate; that on February 20, 1891, said Shelby deeded to this defendant the undivided one-half -interest in said real estate. Defendant Mariah Briley filed her separate answer, in which she avers th-at one Isom conveyed the north one-half of the east one-half of th-e southwest quarter of the northeast quarter of section 33, township 70, range 43, to William A. Briley; that during the lifetime of A. J. Bri'ley i-t was agreed between him and William A. Bri-ley that the latter should purchase the north one-half of the east one-half of the southwest quarter of the northeast quarter of section 33, township 70, range 43, and should exchange the same with A. J.(Briley for the northwest quarter of the southwest quarter of the northeast quarter of section 33, township 70, range 43, and th-at said purchase and exchange were made, but said parties neglected to make written conveyances of said property so exchanged, though they entered into possession, of said property; that on June 2, 1890, William Briley conveyed to the defendant all of his interest in the southwest quarter of -the northeast quarter of said section 33, township 70, range 43; that a-t the death of A. J. Briley he was largely indebted, and it was agreed between the parties to this action that, if Willia'm Briley would pay such indebtedness, plaintiffs would release all their interest in -and to the land last above described; that William did pay said debts, -and p-laintiffs are now estopped from claiming any interest in s-aid real estate. Plaintiffs, in reply, denied that A. J. Briley made the deed claimed to section 24. At the conclusion of- the trial the court entered a decree confirming the title to the -northwest quarter of the south-east quarter of the northwest quarter of section 33, township 70. range 43, in M-ariah Briley, and confirming title to the east one-half of the ’southeast-quarter of the -northwest quarter of section 33» •township 70, range 43, and the southwest quarter of the southeast quarter of- the northwest quarter of said section, township, -and range, except two and one-half acres thereof, in the heirs of A. J. Briley, and ordered partition accordingly. All of the parties excepted, and defendant William Briley appealed from so much of •the decree as was against his claims. An appeal was also taken by some of the other parties as to so much of the decree as was favorable to M-ariah Briley.

II. Defendant William Briley claims that the court should have ■found In his favor as to the land in dispute in section 24. His claim-is based upon adverse possession; also upon a deed said to have been -executed by his father to him. That the father did execute a deed ¡to 'this defendant and his brother Shelby may be conceded. The evidence, however, fails to satisfy us that such a deed was ever -ddlivered to the grantees, or that it was the grantor’s intention that it should be so delivered. We shall not review -all of the testimony.. Much of the evidence offered.cannot be considered, because the witnesses were not competent, under Code, section 3639, to testify to-personal transactions and communications had with the deceased. When such evidence is eliminated we are clearly of the opinion that the court below was justified in holding that A. J. Briley died seized of the land now claimed -by William Briley.

III. The tract of land -in section 33 was found 'by the lower-court to be owned by Mari-ah Briley. While there is some conflict in -the evidence, still we think all of the facts tend strongly to support the decree in this respect. The occupancy of -this tract 'by Wi-lliam Briley during his father’s lifetime; the fact that he made permanent improvements upon it, with the knowledge of his father; the acts of the father in fixing his residence; his declarations touching-William’s ownership of this tract; -and other circumstances and facts in evidence, — fully -warranted the conclusion that the father- and son made the exchange of properties as claimed by William Briley. No useful purpose would be served -by a review of 'the evidence. We -are content with the decree entered below, and it will be affirmed.  