36-101.
Repealed. Laws 1980, LB 814, § 14.
36-102.
Repealed. Laws 1980, LB 814, § 14.
36-103.
Interest in land; how created.No estate or interest in land, other than leases for a term of one year from the making thereof, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by operation of law, or by deed of conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same.
Source:R.S.1866, c. 43, § 62, p. 292; Laws 1903, c. 44, § 1, p. 311; R.S.1913, § 2623; C.S.1922, § 2451; C.S.1929, § 36-103; R.S.1943, § 36-103.
Annotations
1. Oral agreements not within statute
2. Oral agreements within statute
3. Effect of part performance
4. Trusts
5. Leases
6. Specific performance
7. Miscellaneous
1. Oral agreements not within statute
An oral land installment contract, on its own, does not create an interest in land. Kauk v. Kauk, 310 Neb. 329, 966 N.W.2d 45 (2021).
Where one employs an agent to negotiate for purchase of real estate, contract is not within inhibition of this section. Wiskocil v. Kliment, 155 Neb. 103, 50 N.W.2d 786 (1952).
Agreement for partnership to furnish money to buy and sell land is not within statute. Greusel v. Payne, 107 Neb. 84, 185 N.W. 336 (1921).
An oral contract for services, the consideration to be paid when the promisor shall receive his anticipated share out of the estate of his father, not yet deceased, construed as fixing time of payment, and not within statute. Macfarland v. Callahan, 102 Neb. 54, 165 N.W. 889 (1917).
Oral agreement of joint undertaking is not within statute. Kohl v. Munson, 97 Neb. 170, 149 N.W. 314 (1914).
Oral assignment of rents due or to become due, is not interest in land. Yeiser v. Jetter, 86 Neb. 352, 125 N.W. 632 (1910).
Contract whereby one agrees to look up, purchase, improve and resell property, the other to advance money and take title, and both to share profits, is not within statute. Rice v. Parrott, 76 Neb. 501, 107 N.W. 840 (1906), aff'd on rehearing, 76 Neb. 505, 111 N.W. 583 (1906).
Oral agreement of agent to purchase land for principal does not create estate in land. Johnson v. Hayward, 74 Neb. 157, 103 N.W. 1058 (1905), aff'd on rehearing, 74 Neb. 166, 107 N.W. 384 (1905).
Contract to bid in premises at mortgage sale, resell at private sale, and pay over excess, is not within statute. Jones Nat'l Bank v. Price, 37 Neb. 291, 55 N.W. 1045 (1893).
Oral agreement by mortgagee to allow second mortgagees, not parties to action to redeem without suit, is not within statute. Davis v. Greenwood, 2 Neb. Unof. 317, 96 N.W. 526 (1902).
2. Oral agreements within statute
Oral contracts to make a testamentary provision in consideration of services which are to be rendered by another are on their face void as within the statute of frauds because not in writing, and even though proved by clear and satisfactory evidence, they are not enforceable unless there has been such performance as the law requires, and this latter determination as to the sufficiency of part performance is generally a question of fact. In re Estate of Nicholson, 211 Neb. 805, 320 N.W.2d 739 (1982).
An oral agreement purporting to establish an express trust in real estate is within this section. Halsted v. Halsted, 169 Neb. 325, 99 N.W.2d 384 (1959).
Oral agreement to repurchase was void. Winkelmann v. Luebbe, 151 Neb. 543, 38 N.W.2d 334 (1949).
Oral agreement to bid in land at judicial sale for benefit of another was within this section. Smith v. Kinsey, 148 Neb. 786, 28 N.W.2d 588 (1947).
An oral agreement for transfer of title to real estate is void. Hackbarth v. Hackbarth, 146 Neb. 919, 22 N.W.2d 184 (1946).
Oral contract to convey land is unenforceable unless there has been part performance by the promisee which is solely referable to the contract. Taylor v. Clark, 143 Neb. 563, 13 N.W.2d 621 (1943).
An agreement to give a lien on real estate which would have the same effect as a mortgage is invalid if not in writing. Penn Mutual Life Ins. Co. v. Kimble, 132 Neb. 408, 272 N.W. 231 (1937).
An interest in land, with certain exceptions, cannot be assigned except by deed of conveyance. Kramper v. St. John's Church, 131 Neb. 840, 270 N.W. 478 (1936).
Oral pledge of title deed, naming third person as grantee, does not create valid mortgage on real estate. Shafer v. Wilsonville Elevator Co., 121 Neb. 280, 237 N.W. 155 (1931).
Oral agreement to give mortgage is void and not enforceable as equitable mortgage, notwithstanding lender's performance by making loan. Herring v. Whitford, 119 Neb. 725, 232 N.W. 581 (1930).
Exception of estates arising from operation of law was not intended to give effect to contracts imperfectly executed. Bloomfield State Bank v. Miller, 55 Neb. 243, 75 N.W. 569 (1898).
Oral agreement to warrant and defend title is within statute. Kelley v. Palmer, 42 Neb. 423, 60 N.W. 924 (1894).
It is the general rule that an oral agreement for the transfer of title to real estate is voidable under the statute of frauds. Ficke v. Wolken, 22 Neb. App. 587, 858 N.W.2d 249 (2014).
3. Effect of part performance
To establish the part performance exception to the statute of frauds, the alleged acts of performance must speak for themselves. Ficke v. Wolken, 291 Neb. 482, 868 N.W.2d 305 (2015).
Court of equity will give effect to parol grant of easement where it is certain in its terms and there has been such part performance on part of grantee as to take the case out of the statute of frauds. Brown v. Story, 133 Neb. 535, 276 N.W. 155 (1937).
Where past performance of services was not rendered in pursuance of agreement made but prior thereto, such performance was not sufficient to take agreement out of statute. Wehnes v. Marsh, 103 Neb. 120, 170 N.W. 606 (1919).
Statute does not apply to an executed parol contract to transfer title to real estate where the only thing remaining to be performed is payment of the purchase price. Sowards v. Moss, 58 Neb. 119, 78 N.W. 373 (1899).
Where one party completes construction of party wall under oral agreement of each party to pay one-half of the cost thereof, recovery can be had upon the promise to pay. Stuht v. Sweesy, 48 Neb. 767, 67 N.W. 748 (1896).
It is no defense to action for value of land conveyed that contract was oral. Galley v. Galley, 14 Neb. 174, 15 N.W. 318 (1883).
4. Trusts
Where the facts of a case call for the creation of a constructive trust, such trust arises by operation of law and is an exception to the statute of frauds. Fleury v. Chrisman, 200 Neb. 584, 264 N.W.2d 839 (1978).
Statute of frauds does not apply to a constructive trust. Maddox v. Maddox, 151 Neb. 626, 38 N.W.2d 547 (1949).
An attempt to establish an oral trust in real estate is within statute. Anderson v. Anderson, 150 Neb. 879, 36 N.W.2d 287 (1949).
Resulting and constructive trusts are excepted from the operation of the statute of frauds. O'Shea v. O'Shea, 143 Neb. 843, 11 N.W.2d 540 (1943).
Even though contract is unenforceable under statute of frauds, it does not destroy agent's duty not to intermingle principal's property with his own property. Lamb v. Sandall, 135 Neb. 300, 281 N.W. 37 (1938).
The statute of frauds does not affect a resulting trust. Windle v. Kelly, 135 Neb. 143, 280 N.W. 445 (1938).
Resulting trust for benefit of creditors is not within statute. Bodie v. Robertson, 113 Neb. 408, 203 N.W. 590 (1925).
Resulting trust for benefit of grantor who retains possession is not within statute. Doll v. Doll, 96 Neb. 185, 147 N.W. 471 (1914).
When two parties enter into oral contract to purchase land together, and one makes the purchase and payment and the other advances no money, a claimed trust arising therefrom is unenforceable. Norton v. Brink, 75 Neb. 566, 106 N.W. 668 (1906), 75 Neb. 575, 110 N.W. 669 (1906).
Purchase of mortgaged premises at sale for debtor, under oral agreement to hold same as security, is an enforceable trust. Dickson v. Stewart, 71 Neb. 424, 98 N.W. 1085 (1904).
Express trust cannot arise out of parol promise of grantee to convey to another; however, a constructive trust is found due to constructive fraud. Pollard v. McKenney, 69 Neb. 742, 96 N.W. 679 (1903), modified, 69 Neb. 753, 101 N.W. 9 (1903).
Where beneficiary takes possession of land purchased in pursuance of a parol trust agreement, the statute of frauds is satisfied. Oberlender v. Butcher, 67 Neb. 410, 93 N.W. 764 (1903).
Trust in personalty is valid between parties. Wolf v. Haslach, 65 Neb. 303, 91 N.W. 283 (1902).
Where right to recover depends on establishing an interest in land, an oral trust will fail and parol agreement to give one half beneficial interest falls in latter category. Cameron v. Nelson, 57 Neb. 381, 77 N.W. 771 (1899).
Parol declaration of trust must be clear and explicit, and point out subject matter and beneficiary though statute is not pleaded. Kobarg v. Greeder, 51 Neb. 365, 70 N.W. 921 (1897); Roddy v. Roddy, 3 Neb. 96 (1873).
Parol agreement to reconvey is within statute and does not create express trust. Thomas v. Churchill, 48 Neb. 266, 67 N.W. 192 (1896).
Instrument creating a trust need not be a deed. Carter v. Gibson, 29 Neb. 324, 45 N.W. 634 (1890).
A creditor cannot levy on land because held under oral trust. Cresswell v. McCaig, 11 Neb. 222, 9 N.W. 52 (1881).
Express trust must be in writing. Elder v. Webber, 3 Neb. Unof. 534, 92 N.W. 126 (1902).
Constructive trusts are excepted from the operation of the statute of frauds. I.P. Homeowners, Inc. v. Radtke, 5 Neb. App. 271, 558 N.W.2d 582 (1997).
5. Leases
Where a written lease for five years was modified by parol, and is subsequently fully carried out as modified, party cannot thereafter challenge the modification as being void under the statute of frauds. Corcoran v. Leon's, Inc., 126 Neb. 149, 252 N.W. 819 (1934).
Where by agreement between all the partners a new member is admitted to the firm, he acquires an interest in a lease to the partnership by operation of law, and such transfer is not within the statute of frauds. Gorder & Son v. Pankonin, 83 Neb. 204, 119 N.W. 449 (1909).
Where a written lease has been modified by parol, and fully carried out as modified, it is a bar to action for rent on old lease. Bowman v. Wright, 65 Neb. 661, 91 N.W. 580 (1902).
Lease signed in name of agent is valid if it purports to be for the principal. Wheeler v. Walden, 17 Neb. 122, 22 N.W. 346 (1885).
Lease to A for life of B is not within statute. McCormick v. Drummett, 9 Neb. 384, 2 N.W. 729 (1879).
Surrender and assignment of lease is not provable by parol. Kittle v. St. John, 7 Neb. 73 (1878).
Where lessee quits under agreement, and lessor takes possession or accepts rents from another, lease is surrendered by operation of law. Boyd v. George, 2 Neb. Unof. 420, 89 N.W. 271 (1902).
6. Specific performance
One seeking specific performance of an oral contract to leave property to another has the burden of proving not only the contract but also that he has performed the obligations imposed upon him thereunder. The evidence of such agreement must be clear, satisfactory, and unequivocal. Guynan v. Guynan, 208 Neb. 775, 305 N.W.2d 882 (1981).
In an action for specific performance of an oral contract within the statute of frauds, evidence of the existence of the contract and its terms must be clear, satisfactory and unequivocal. Caspers v. Frerichs, 146 Neb. 740, 21 N.W.2d 513 (1946).
Before specific performance of an oral contract to convey real estate will be decreed, the acts claimed to be in part performance themselves must unequivocally indicate the existence of the contract. Crnkovich v. Crnkovich, 144 Neb. 904, 15 N.W.2d 66 (1944).
Specific performance will not be granted of oral contract to convey real estate made by agent without authority. Shelby v. Platte Valley Public Power & Irr. Dist., 134 Neb. 354, 278 N.W. 568 (1938).
An oral contract partly performed, which the statute of frauds requires to be in writing, will be enforced by a court of equity. Campbell v. Kewanee Finance Co., 133 Neb. 887, 277 N.W. 593 (1938).
An oral agreement to devise homestead to son for care during parents' lifetime. Denesia v. Denesia, 116 Neb. 789, 219 N.W. 142 (1928).
Where preliminary agreement required execution of ninety-nine year lease on or before sixty days from date, delay for over five months in tendering signed lease prevented specific performance. Mercer v. Payne & Sons Co., 115 Neb. 420, 213 N.W. 813 (1927).
Oral agreement to adopt, and devise lands, may be specifically enforced where fully performed by one party. Kofka v. Rosicky, 41 Neb. 328, 59 N.W. 788 (1894).
To authorize specific performance, only party to be charged need have signed memorandum. Gartrell v. Stafford, 12 Neb. 545, 11 N.W. 732 (1882).
7. Miscellaneous
An exception is outside of this section, but a reservation must comply with this section. Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017).
The acceptance of a deed operates to satisfy the requirement that a contract creating an interest in land must be signed by the party to be charged therewith. Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017).
District court may decree legal title to real estate in one who furnished the purchase money and deed named another as grantee. Kollbaum v. K & K Chevrolet, Inc., 196 Neb. 555, 244 N.W.2d 173 (1976).
Interest in land may be created by operation of law. Jenkins v. Jenkins, 151 Neb. 113, 36 N.W.2d 637 (1949).
A valid contract in writing for the sale of land may be made by correspondence, and it is not necessary that there shall be a single paper signed by the parties containing all of the conditions of the contract. O'Shea v. Smith, 142 Neb. 231, 5 N.W.2d 348 (1942).
For purposes of taxation a mortgage on real estate is declared by statute to be an interest therein. North Platte Lodge B.P.O.E. v. Board of Equalization, 125 Neb. 841, 252 N.W. 313 (1934).
Oral contracts are not void but voidable at option of either party. Bodie v. Robertson, 113 Neb. 408, 203 N.W. 590 (1925).
It is against conscience that one man shall be enriched to the injury and cost of another, induced by his own act. Smith v. Kober, 108 Neb. 768, 189 N.W. 377 (1922).
It is doubtful if ownership of land can be transferred by parol even if such attempted parol transfer is afterwards acknowledged in writing. Miles v. Lampe, 102 Neb. 619, 168 N.W. 640 (1918).
Petition not alleging agreement to sell, in writing, is sufficient after judgment. Schmid v. Schmid, 37 Neb. 629, 56 N.W. 207 (1893).
Deed executed, witnessed and delivered, passes title though not acknowledged. Harrison v. McWhirter, 12 Neb. 152, 10 N.W. 545 (1881).
Parol testimony is admissible in action for value of property conveyed. Skow v. Locke, 3 Neb. Unof. 176, 91 N.W. 204 (1902).
Where vendor signs agreement to convey, vendee accepting memorandum and taking possession, signature is unnecessary though contemplated. Chambers v. Barker, 2 Neb. Unof. 523, 89 N.W. 388 (1902).
36-104.
Interest in land; how created; devises; trusts by operation of law.Section 36-103 shall not be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law.
Source:R.S.1866, c. 43, § 63, p. 292; R.S.1913, § 2624; C.S.1922, § 2452; C.S.1929, § 36-104; R.S.1943, § 36-104.
Annotations
1. Resulting trusts
2. Constructive trusts
3. Miscellaneous
1. Resulting trusts
Trusts arising by operation of law are excepted from the operation of the statute of frauds. Jenkins v. Jenkins, 151 Neb. 113, 36 N.W.2d 637 (1949).
Both resulting and constructive trusts fall within the exception of this section. Watkins v. Waits, 148 Neb. 543, 28 N.W.2d 206 (1947); O'Shea v. O'Shea, 143 Neb. 843, 11 N.W.2d 540 (1943).
A resulting trust is not within the statute of frauds, and parol testimony is admissible to prove the purchase for, and payment of the consideration by, the beneficiary, even though the deed recites the consideration was paid by the grantee. Bodie v. Robertson, 113 Neb. 408, 203 N.W. 590 (1925).
Payment of purchase price by husband, title taken in wife's name, should be construed as gift, not resulting trust. Van Etten v. Passumpsic Savings Bank, 79 Neb. 632, 113 N.W. 163 (1907).
Where parties make parol contract to purchase land together, and title is taken and payment made by one, the other advancing no money, a resulting trust does not arise. Norton v. Brink, 75 Neb. 575, 110 N.W. 669 (1906).
Evidence to establish resulting trust should be clear, satisfactory and conclusive. Doane v. Dunham, 64 Neb. 135, 89 N.W. 640 (1902); Klamp v. Klamp, 51 Neb. 17, 70 N.W. 525 (1897).
It may be shown by parol that plaintiff paid consideration though deed recites that grantee paid same. Chicago, B. & Q. R. Co. v. First Nat. Bank of Omaha, 58 Neb. 548, 78 N.W. 1064 (1899).
Presumption of resulting trust arising from payment of purchase price does not obtain where the parties are related. Klamp v. Klamp, 51 Neb. 17, 70 N.W. 525 (1897).
Party furnishing share of purchase money, title being taken in name of associates, may enforce parol trust. Leader v. Tierney, 45 Neb. 753, 64 N.W. 226 (1895).
Payment of purchase price raises a presumption of a resulting trust where title is taken in name of stranger, but not where parties are husband and wife. Solomon v. Solomon, 3 Neb. Unof. 540, 92 N.W. 124 (1902).
2. Constructive trusts
Where an agent, in a confidential relationship with his principal, acquires title from the principal in order to sell the land, agent's retention of the land would be unjust enrichment, and a constructive trust is created. Fleury v. Chrisman, 200 Neb. 584, 264 N.W.2d 839 (1978).
Statute of frauds does not apply to a constructive trust. Wiskocil v. Kliment, 155 Neb. 103, 50 N.W.2d 786 (1952); Maddox v. Maddox, 151 Neb. 626, 38 N.W.2d 547 (1949).
Existence of constructive trust arising out of contract for sale of real estate must be proved by clear, satisfactory, and convincing evidence. Smith v. Kinsey, 148 Neb. 786, 28 N.W.2d 588 (1947).
Where the record title to land is obtained from grantor by fraud of grantee, a constructive trust arises that is excepted from the operation of the statute of frauds. Raasch v. Lund Land Co., 103 Neb. 157, 170 N.W. 836 (1919).
A constructive trust arises where agent under oral contract to purchase for principal, purchases in own name. Johnson v. Hayward, 74 Neb. 157, 103 N.W. 1058 (1905), aff'd on rehearing, 74 Neb. 166, 107 N.W. 384 (1905).
Purchase of land by agent with his own funds, when he had orally agreed to attempt to purchase for principal, created a trust by operation of law. Johnson v. Hayward, 74 Neb. 157, 103 N.W. 1058 (1905), aff'd on rehearing, 74 Neb. 166, 107 N.W. 384 (1905).
A constructive trust is created by conveyance of property to one in confidential relation, under oral promise to reconvey. Koefoed v. Thompson, 73 Neb. 128, 102 N.W. 268 (1905).
Where a conveyance is induced by fraudulent promise of grantee to convey as grantor directs, a constructive trust arises. Pollard v. McKenney, 69 Neb. 742, 96 N.W. 679 (1903), modified 69 Neb. 753, 101 N.W. 9 (1903).
3. Miscellaneous
A high degree of proof is required to establish a trust by parol evidence. Parrott v. Hofmann, 151 Neb. 249, 37 N.W.2d 199 (1949).
Contract to devise land must be written, but is aided by part performance. Cobb v. Macfarland, 87 Neb. 408, 127 N.W. 377 (1910).
Where a person, knowing that a testator, in giving him a devise or bequest, intends it to be applied for the benefit of another, either expressly promises or by his action at the time implies he will carry the testator's intention into effect, he will be held as a trustee and the statute of frauds cannot be successfully urged as a defense. Smullin v. Wharton, 73 Neb. 667, 106 N.W. 577 (1905), aff'd on rehearing, 73 Neb. 705, 112 N.W. 622 (1905).
Express trust cannot be raised by parol. Hansen v. Berthelson, 19 Neb. 433, 27 N.W. 423 (1886); Courvoirsier v. Bouvier, 3 Neb. 55 (1873).
36-105.
Contracts for lease or sale of lands; when void.Every contract for the leasing for a longer period than one year, or for the sale of any lands, shall be void unless the contract or some note or memorandum thereof be in writing and signed by the party by whom the lease or sale is to be made.
Source:R.S.1866, c. 43, § 64, p. 293; R.S.1913, § 2625; C.S.1922, § 2453; C.S.1929, § 36-105; R.S.1943, § 36-105.
Annotations
1. Signing
2. Description of parties
3. Authority of agent to sign
4. Sufficiency of writing or description
5. Parol lease
6. Memorandum
7. Performance of contract
8. Miscellaneous
1. Signing
A typed or printed name on a document is a signing sufficient to satisfy the statute of frauds, provided the name is recognized as his signature by the party sought to be charged. Department of Banking, Receiver v. Wilken, 217 Neb. 796, 352 N.W.2d 145 (1984).
A telegram to which a seller's name has been affixed may be considered as having been signed by him within the meaning of the statute of frauds. Hansen v. Hill, 215 Neb. 573, 340 N.W.2d 8 (1983).
To be enforceable, a contract for the sale of real estate or some memorandum thereof must be in writing and signed by the seller, and minds of parties must meet. Horn v. Stuckey, 146 Neb. 625, 20 N.W.2d 692 (1945).
In an agreement for sale in a separate instrument, not only must vendor sign, but the name or description of the vendee must appear. Barkhurst v. Nevins, 106 Neb. 33, 182 N.W. 563 (1921).
Vendor only is required to sign contract or memorandum. Iske v. Iske, 95 Neb. 603, 146 N.W. 918 (1914); Ballou v. Sherwood, 32 Neb. 666, 49 N.W. 790 (1891); Robinson v. Cheney, 17 Neb. 673, 24 N.W. 378 (1885).
A contract for sale of real estate is not binding upon vendor until it is signed and delivered to vendee. Smith v. Severn, 93 Neb. 148, 139 N.W. 858 (1913).
2. Description of parties
Memorandum, neither naming nor describing parties so they can be identified, is not sufficient. Frahm v. Metcalf, 75 Neb. 241, 106 N.W. 227 (1905).
Memorandum containing names of parties, description, price and reference to ten year terms of seller is sufficient. McWilliams v. Lawless, 15 Neb. 131, 17 N.W. 349 (1883).
3. Authority of agent to sign
Employment contract and if the parties intend that the agent shall have authority to sign a sales contract it should be expressly and clearly stated in writing. Brezina v. Hill, 195 Neb. 481, 238 N.W.2d 903 (1976).
Agent need not sign writing authorizing him to sign contract as signature of principal is all that is necessary. Seberger v. Wood, 106 Neb. 272, 183 N.W. 363 (1921).
Letter merely stating terms is no authority. Ross v. Craven, 84 Neb. 520, 121 N.W. 451 (1909).
Authority may be given by letter written by owner. Harrison v. Rice, 78 Neb. 654, 111 N.W. 594 (1907).
Agent must be authorized in writing. O'Shea v. Rice, 49 Neb. 893, 69 N.W. 308 (1896).
4. Sufficiency of writing or description
The written evidence required by this section must contain the essential terms of the contract, and the amount of rent is an essential term when an express lease agreement contemplates the payment of rent in money. Gibbons Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d 808 (2015).
The memorandum required by this section must contain the essential terms of the contract, lacking which specific performance will not be decreed. Reifenrath v. Hansen, 190 Neb. 58, 206 N.W.2d 42 (1973).
This section and applicable case law do not require terms of sale be set forth in listing contract with broker. Wisnieski v. Coufal, 188 Neb. 200, 195 N.W.2d 750 (1972).
This section clearly contemplates that the contract, note, or memorandum thereof in writing shall contain within itself all of the essential elements which go to make up a contract and when essential elements of the contract are lacking the contract must fail because essential elements cannot be supplied by parol testimony. Kubicek v. Kubicek, 186 Neb. 802, 186 N.W.2d 923 (1971).
Correspondence between the parties can satisfy requirements of statute. Griggs v. Oak, 164 Neb. 296, 82 N.W.2d 410 (1957).
Memorandum must be signed by the vendor, and the name or description of the vendee must also appear. Campbell v. Kewanee Finance Co., 133 Neb. 887, 277 N.W. 593 (1938).
Vendee's petition for specific performance of contract to sell realty was sufficient to disclose a sufficient note or memorandum, signed by vendor, to satisfy statute of frauds. Long v. Osborn, 119 Neb. 758, 230 N.W. 686 (1930).
Written memorandum did not sufficiently describe land to take case out of operation of statute. Tate v. Barb, 112 Neb. 756, 200 N.W. 1002 (1924).
Letter to agent describing land and terms, you may . . . close deal, is sufficient authority. Furse v. Lambert, 85 Neb. 739, 124 N.W. 146 (1910).
Description must be sufficiently definite to identify land. North . . . feet of Lot 8, where vendor owned whole lot, is insufficient. McCarn v. London, 83 Neb. 201, 119 N.W. 251 (1909).
Letter stating I still have northwest quarter section 20, township 22-5, and would sell for three thousand dollars cash, is sufficient authority. Weaver v. Snively, 73 Neb. 35, 102 N.W. 77 (1905).
Description is not sufficient, which does not specify which quarter of a named section is being sold, and where vendor owned but one out of the four quarters. Ruzicka v. Hotovy, 72 Neb. 589, 101 N.W. 328 (1904).
Authority to agent to sell need not state price. Rank v. Garvey, 66 Neb. 767, 92 N.W. 1025 (1902).
Parol evidence is admissible to explain latent ambiguity in description, as where there are two additions of same name. Ballou v. Sherwood, 32 Neb. 666, 49 N.W. 790, 50 N.W. 1131 (1891).
Description must be definite and not ambiguous. Barton v. Patrick, 20 Neb. 654, 31 N.W. 370 (1886).
5. Parol lease
An oral lease for only one year is void if entered into prior to the beginning of the term. Prigge v. Olson, 154 Neb. 131, 47 N.W.2d 344 (1951); Kofoid v. Lincoln Implement & Transfer Co., 80 Neb. 634, 114 N.W. 937 (1908); Thostesen v. Doxsee, 77 Neb. 536, 110 N.W. 319 (1906).
A parol lease for three years is valid for one year. Osgood v. Shea, 86 Neb. 729, 126 N.W. 310 (1910).
Where possession is taken under oral lease for two years, lessee becomes tenant for one year. Dewey & Stone v. Payne & Co., 19 Neb. 540, 26 N.W. 248 (1886).
Lease signed but not witnessed or acknowledged is valid between parties. Weaver v. Coumbe, 15 Neb. 167, 17 N.W. 357 (1883).
Lease for term exceeding one year is void; but if lessee enters, is valid for one year. Friedhoff & Co. v. Smith, 13 Neb. 5, 12 N.W. 820 (1882).
Lease which may terminate within one year, as lease for life of another, is valid. McCormick v. Drummett, 9 Neb. 384, 2 N.W. 729 (1879).
6. Memorandum
In order to satisfy the provisions of this section, a memorandum, in addition to being signed by the party to be charged or by his or her agent actually or apparently authorized to do so, must state with reasonable certainty (1) each party to the contract either by his or her own name, or by such a description as will serve to identify him or her, or by the name or description of his or her agent, (2) the land, goods or other subject matter to which the contract relates, and (3) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made. Pallas v. Black, 226 Neb. 728, 414 N.W.2d 805 (1987).
A telegram may constitute a sufficient memorandum under the statute of frauds. Hansen v. Hill, 215 Neb. 573, 340 N.W.2d 8 (1983).
The memorandum is not the contract but only written evidence of an oral contract, and if it contains the essential terms thereof parol evidence is admissible to show what land it refers to. David v. Tucker, 196 Neb. 575, 244 N.W.2d 197 (1976).
Agreement for sale of land is void in absence of written memorandum signed by vendor. Krueger v. Callies, 190 Neb. 376, 208 N.W.2d 685 (1973).
Where there was no contract, note or memorandum signed, and no part performance, oral contract for sale of land was unenforceable. Taylor v. Clark, 143 Neb. 563, 13 N.W.2d 621 (1944).
Not only must vendor sign, but name or description of the vendee must appear. Barkhurst v. Nevins, 106 Neb. 33, 182 N.W. 563 (1921).
Entire correspondence, including abstract accompanying and referred to in letter, were sufficient to constitute memorandum. Heenan & Finlen v. Parmele, 80 Neb. 514, 118 N.W. 324 (1908).
Memorandum may consist of several letters, referring to same subject. Undelivered deed is insufficient, but may supply defects in description in another memorandum. Collyer v. Davis, 72 Neb. 887, 101 N.W. 1001 (1904).
Memorandum need not state consideration or terms and conditions of payment. Ruzicka v. Hotovy, 72 Neb. 589, 101 N.W. 328 (1904).
Memorandum showing names of parties, description of land, price, general terms, and signed by vendor is sufficient. Gardels v. Kloke, 36 Neb. 493, 54 N.W. 834 (1893).
Memorandum may be proved by letters. Vindquest v. Perky, 16 Neb. 284, 20 N.W. 301 (1884).
7. Performance of contract
Where right to recover depends upon the establishment of an interest in land, oral contract is unenforceable in absence of part performance. Anderson v. Anderson, 150 Neb. 879, 36 N.W.2d 287 (1949).
Oral contract for sale of real estate, unaccompanied by any acts of part performance except payment of consideration, cannot be enforced. Baker v. Heavrin, 148 Neb. 766, 29 N.W.2d 375 (1947).
Oral agreement for sale of lands is void and will not be enforced unless there has been part performance by the promisee which is solely referable to the contract. Herbstreith v. Walls, 147 Neb. 805, 25 N.W.2d 409 (1946).
Where contract of sale is oral, and there has been no part performance on part of owner of land, no right accrues to purported purchaser. Williams v. Beckmark, 146 Neb. 814, 21 N.W.2d 745 (1946).
Before specific performance of an oral contract to convey real estate will be decreed, the acts claimed to be in part performance themselves must unequivocally indicate the existence of the contract. Crnkovich v. Crnkovich, 144 Neb. 904, 15 N.W.2d 66 (1944).
A subsequent oral contract, superseding or modifying one which the statute of frauds requires to be in writing, will be upheld, if executed. Lucas v. County Recorder of Cass County, 75 Neb. 351, 106 N.W. 217 (1905).
Delivery of deed to appointed agent of vendee is sufficient compliance by vendor. Soward v. Moss, 59 Neb. 71, 80 N.W. 268 (1899).
In action for money due for land conveyed, statute is no defense. Griffith v. Thompson, 50 Neb. 424, 69 N.W. 946 (1897).
8. Miscellaneous
An oral land installment contract, on its own, is not within this section. Kauk v. Kauk, 310 Neb. 329, 966 N.W.2d 45 (2021).
Where the owner of one property sought to bind a purchaser of another property to the terms of a 50-year lease agreement entered into between different parties, the owner's breach of contract claim was barred by the statute of frauds because there was no privity of contract or an express assumption of the lease. Brick Development v. CNBT II, 301 Neb. 279, 918 N.W.2d 824 (2018).
An alleged agreement to settle a quiet title action is subject to the statute of frauds. Omaha Nat. Bank v. Mullenax, 211 Neb. 830, 320 N.W.2d 755 (1982).
An auction of real estate without reserve is within the statute of frauds. Benson v. Ruggles & Burtch v. Benson, 208 Neb. 330, 303 N.W.2d 496 (1981).
An oral agreement to make a will is unenforceable under this section but there is nothing contained in sections 36-101 to 36-106, R.R.S.1943, which should be construed to bridge the power of a court of equity to compel specific performance of agreements in cases of part performance. Rudolph v. Hartung, 202 Neb. 678, 277 N.W.2d 60 (1979).
A mere oral promise to bid in property at a tax foreclosure sale, and convey it to the owner upon being reimbursed, is a contract for the sale of land within this section. Smith v. Kinsey, 148 Neb. 786, 28 N.W.2d 588 (1947).
A resulting trust arising from taking of title to school land lease in name of one person for benefit of another who paid the purchase price is not affected by the statute of frauds. Reetz v. Olson, 146 Neb. 621, 20 N.W.2d 687 (1945).
A parol modification of an annuity agreement constituting a charge on real estate is valid, and complete performance of the agreement as modified will discharge the lien. Hylton v. Krueger, 138 Neb. 691, 294 N.W. 485 (1940).
Agent for purchase of real estate, who purchases for himself will be considered in equity as holding property in trust for his principal, subject to reimbursement for his proper expenditures. Lamb v. Sandall, 135 Neb. 300, 281 N.W. 37 (1938).
The defense of the statute is personal to the parties. Happ v. Ducey, 110 Neb. 429, 193 N.W. 918 (1923).
Oral agreement of persons to furnish money and buy and sell land is not within statute. Greusel v. Payne, 107 Neb. 84, 185 N.W. 336 (1921).
Sale and delivery of corporate stock, with oral agreement to repurchase, is not within statute. Griffin v. Bankers Realty Investment Co., 105 Neb. 419, 181 N.W. 169 (1920).
Oral agreement granting defendants the right to occupy and use the lands during lifetime of their father at a certain annual rental, under the circumstances was not within the statute. Luther v. Luther, 103 Neb. 46, 170 N.W. 364 (1918).
Parol agreement between mortgagor and mortgagee to give deed in satisfaction of mortgage is within statute. Montpelier Savings Bank & Trust Co. v. Follett, 68 Neb. 416, 94 N.W. 635 (1903).
Defense of statute of frauds is personal to party to be charged, and privies. Dailey v. Kinsler, 35 Neb. 835, 53 N.W. 973 (1892).
Assignments of contracts for sale of real estate in blank are void. Folsom v. McCague, 29 Neb. 124, 45 N.W. 269 (1890).
Where an option to purchase is contained in a lease signed by the vendor, an oral acceptance signed by the vendee is sufficient. Smith v. Gibson, 25 Neb. 511, 41 N.W. 360 (1889).
Parol agreement to reconvey to grantor is within statute. O'Brien v. Gaslin, 20 Neb. 347, 30 N.W. 274 (1886).
It is the general rule that an oral agreement for the transfer of title to real estate is voidable under the statute of frauds. Ficke v. Wolken, 22 Neb. App. 587, 858 N.W.2d 249 (2014).
36-106.
Contracts for lease or sale of lands; specific performance.Nothing contained in sections 36-103 to 36-106 shall be construed to abridge the powers of a court of equity to compel the specific performance of agreements in cases of part performance.
Source:R.S.1866, c. 43, § 65, p. 293; R.S.1913, § 2626; C.S.1922, § 2454; C.S.1929, § 36-106; R.S.1943, § 36-106.
Annotations
1. Proof of contract
2. Part performance
3. Payment of consideration
4. Change of possession and improvements
5. Miscellaneous
1. Proof of contract
The proponent of an oral land installment contract fails to satisfy his or her burden to prove the terms of the contract were clear, satisfactory, and unequivocal if he or she does not refute evidence that the parties to the contract never came to a final agreement on its terms. Kauk v. Kauk, 310 Neb. 329, 966 N.W.2d 45 (2021).
A party seeking specific performance of an oral contract for the sale of real estate upon the basis of past performance must prove, among other things, an oral contract, the terms of which are clear, satisfactory, and unequivocal. Sayer v. Bowley, 243 Neb. 801, 503 N.W.2d 166 (1993).
In order to establish that an oral contract falls within an exception to section 36-103, the statute of frauds for interest in land, the proponent of the contract must establish by clear, satisfactory, and unequivocal evidence the terms of the contract, that acts done in the performance thereof are referable solely to that contract, and that the acts performed are of such a nature that nonperformance of the contract by the other party would amount to a fraud upon the proponent. Johnson v. NM Farms Bartlett, 226 Neb. 680, 414 N.W.2d 256 (1987).
In order to satisfy the requirements of this section, the burden is upon the proponent to prove an oral contract, the terms of which are clear, satisfactory, and unequivocal, and that the acts done in performance are referable solely to the contract sought to be enforced, so that nonperformance by the other party would amount to a fraud upon him. Darsaklis v. Schildt, 218 Neb. 605, 358 N.W.2d 186 (1984).
Specific performance of an oral contract to transfer specific property in consideration of personal care of owner may be decreed by court. Peters v. Wilks, 151 Neb. 861, 39 N.W.2d 793 (1949).
Where party is claiming estate of deceased person under oral contract, evidence of contract and the terms thereof must be clear, satisfactory, and unequivocal. Lunkwitz v. Guffey, 150 Neb. 247, 34 N.W.2d 256 (1948).
Equity will grant specific performance of parol contract to convey real estate where contract is established by clear, convincing, and satisfactory evidence, and where it has been fully performed by one party and its nonfulfillment would amount to a fraud on the other party. Garner v. McCrea, 147 Neb. 541, 23 N.W.2d 731 (1946).
Oral contract with deceased person for devise of land must be clear, definite and unequivocal. Young v. Gillen, 108 Neb. 311, 187 N.W. 900 (1922); Poland v. O'Connor, 1 Neb. 50 (1871).
Where contract to devise to adopted child is clearly established and entirely performed on child's part, specific performance should be decreed. Evans v. Kelly, 104 Neb. 712, 178 N.W. 630 (1920); Kofka v. Rosicky, 41 Neb. 328, 59 N.W. 788 (1894).
If contract is definite and clearly proved and substantial performance is proved by clear and unequivocal evidence, it has the same force as if written. Parks v. Burney, 103 Neb. 572, 173 N.W. 478 (1919).
Proof must admit of no explanation without supposing contract to exist. Mancuso v. Rosso, 81 Neb. 786, 116 N.W. 679 (1908).
Evidence must be clear and satisfactory. Harrison v. Harrison, 80 Neb. 103, 113 N.W. 1042 (1907).
Acts must have been done with reference to contract. Lewis v. North, 62 Neb. 552, 87 N.W. 312 (1901).
Proof must be unaccountable except as done under existing contract, and terms must be clearly established. Using lot for storage is insufficient. Hunt v. Lipp, 30 Neb. 469, 46 N.W. 632 (1890).
Acts must unequivocally appear to relate to identical contract pleaded. Morgan v. Bergen, 3 Neb. 209 (1874).
2. Part performance
An oral agreement to make a will is unenforceable under this section but there is nothing contained in sections 36-101 to 36-106, R.R.S.1943, which should be construed to bridge the power of a court of equity to compel specific performance of agreements in cases of part performance. Rudolph v. Hartung, 202 Neb. 678, 277 N.W.2d 60 (1979).
Acts of part performance must relate solely to the oral contract to be enforced. Meyer v. Meyer, 180 Neb. 379, 142 N.W.2d 922 (1966).
Requirements of part performance restated. Anderson v. Anderson, 150 Neb. 879, 36 N.W.2d 287 (1949).
Part performance must be such as is referable solely to the contract sought to be enforced. Smith v. Kinsey, 148 Neb. 786, 28 N.W.2d 588 (1947).
Part payment of consideration, unaccompanied by other acts of part performance, is insufficient as the basis for a decree of specific performance. Baker v. Heavrin, 148 Neb. 766, 29 N.W.2d 375 (1947).
Where purchaser takes and retains possession and also pays a portion or all of the purchase price, such acts together may constitute part performance. Herbstreith v. Walls, 147 Neb. 805, 25 N.W.2d 409 (1946).
Acts constituting part performance must be such as are referable solely to the contract sought to be enforced. Caspers v. Frerichs, 146 Neb. 740, 21 N.W.2d 513 (1946).
Before specific performance of an oral contract to convey real estate will be decreed, the acts claimed to be in part performance themselves must unequivocally indicate the existence of the contract. Crnkovich v. Crnkovich, 144 Neb. 904, 15 N.W.2d 66 (1944).
An oral contract, partly performed, which the statute of frauds requires to be in writing, will be enforced by a court of equity. Campbell v. Kewanee Finance Co., 133 Neb. 887, 277 N.W. 593 (1938).
Where oral contract for reciprocal wills is followed by the execution thereof, reliance thereon by plaintiff is full performance and entitles him to specific performance against heirs. Brown v. Webster, 90 Neb. 591, 134 N.W. 185 (1912).
Parol license to construct irrigation ditch and dam on others' land, when acted upon and used for years, is irrevocable. Arterburn v. Beard, 86 Neb. 733, 126 N.W. 379 (1910).
Contract to devise to stepson on condition he remain at home and work until he becomes of age, clearly and satisfactorily proved and fully performed by him, can be specifically enforced. Hespin v. Wendeln, 85 Neb. 172, 122 N.W. 852 (1909).
Where plaintiff has fully performed, and contract is clearly proved, contract to devise, in consideration of son returning to live with father, is enforced. Harrison v. Harrison, 80 Neb. 103, 113 N.W. 1042 (1907).
Where there is full performance by vendee and part performance by vendor, including surrender of possession, contract can be enforced in action to quiet title. Morrison v. Gosnell, 76 Neb. 539, 107 N.W. 753 (1906).
Oral agreement to purchase land at sale, and hold same for mortgagor, was enforced. Dickson v. Stewart, 71 Neb. 424, 98 N.W. 1085 (1904).
Want of mutuality is no defense where party not bound has fully performed. Dickson v. Stewart, 71 Neb. 424, 98 N.W. 1085 (1904); Bigler v. Baker, 40 Neb. 325, 58 N.W. 1026 (1894).
Oral contract should be enforced where party cannot be restored to former situation. Teske v. Dittberner, 70 Neb. 544, 98 N.W. 57 (1903).
Oral agreement to devise, should be specifically enforced, where one party has fully performed and damages would be inadequate. Best v. Gralapp, 69 Neb. 811, 96 N.W. 641 (1903), aff'd on rehearing, 69 Neb. 815, 99 N.W. 837 (1903).
Continued possession of tenant or vendee is insufficient. Lewis v. North, 62 Neb. 552, 87 N.W. 312 (1901); Bradt v. Hartson, 4 Neb. Unof. 889, 96 N.W. 1008 (1903).
Acts of vendee in taking possession though probably insufficient as part performance, may be sufficient to sustain action for purchase price. Stephens v. Harding, 48 Neb. 659, 67 N.W. 746 (1896).
3. Payment of consideration
Payment of full purchase price is insufficient. Retention of lands under oral agreement to relinquish share in estate is not part performance. Riddell v. Riddell, 70 Neb. 472, 97 N.W. 609 (1903).
Where considerable portion of purchase money is paid, and vendee takes possession, oral agreement is not within statute. Lipp v. Hunt, 25 Neb. 91, 41 N.W. 143 (1888).
Partial payment of purchase price will not take case out of statute. Baker v. Wiswell, 17 Neb. 52, 22 N.W. 111 (1885); Poland v. O'Connor, 1 Neb. 50 (1871).
4. Change of possession and improvements
Continued possession by tenant is not part performance as possession is presumed to be held under tenancy and not under contract. Steger v. Kosch, 77 Neb. 147, 108 N.W. 165 (1906); Lewis v. North, 62 Neb. 552, 87 N.W. 312 (1901); Schields v. Horbach, 49 Neb. 262, 68 N.W. 524 (1896); Bigler v. Baker, 40 Neb. 325, 58 N.W. 1026 (1894).
Parol gift of land, where donee takes possession and makes valuable improvements, is valid. Merriman v. Merriman, 75 Neb. 222, 106 N.W. 174 (1905).
Possession and valuable improvements by vendee are sufficient as part performance. Coleridge Creamery Co. v. Jenkins, 66 Neb. 129, 92 N.W. 123 (1902).
Parol gift followed by possession and erection of valuable improvements by donee, should be upheld. Preponderance of evidence sufficient. Wylie v. Charlton, 43 Neb. 840, 62 N.W. 220 (1895).
Possession taken of lots, but used for storage, is insufficient. Hunt v. Lipp, 30 Neb. 469, 46 N.W. 632 (1890).
Where two parties enter into oral agreement to convey lots to a railroad to induce location of a depot, and one party conveys his lots, statute of frauds would be defense to action for specific performance. Harris v. Roberts, 12 Neb. 631, 12 N.W. 89 (1882).
Delivery of possession and full performance by vendee are sufficient. Hanlon v. Wilson, 10 Neb. 138, 4 N.W. 1031 (1880).
Possession must be open, visible and unequivocal, and improvements must have been induced by positive action or permission of vendor. Poland v. O'Connor, 1 Neb. 50 (1871).
Oral contract should not be enforced where there is no change in possession, as prior possession as tenant, is presumed to continue as such. Bradt v. Hartson, 4 Neb. Unof. 889, 96 N.W. 1008 (1903).
5. Miscellaneous
Specific performance may be had of an oral contract for the conveyance of a homestead. Riley v. Riley, 150 Neb. 176, 33 N.W.2d 525 (1948).
An action in equity to enforce an oral agreement to convey real estate is protected by statute. Hackbarth v. Hackbarth, 146 Neb. 919, 22 N.W.2d 184 (1946).
Section recognizes and continues practice of equity decreeing specific performance when contract partly is performed to prevent fraud and injustice. Includes contracts to devise. Cobb v. Macfarland, 87 Neb. 408, 127 N.W. 377 (1910).
36-107.
Sale of lands; owner's contract with agent or broker; when void.Every contract for the sale of lands between the owner thereof and any broker or agent employed to sell the same, shall be void, unless the contract is in writing and subscribed by the owner of the land and the broker or agent. Such contract shall describe the land to be sold, and set forth the compensation to be allowed by the owner in case of sale by the broker or agent.
Source:Laws 1897, c. 57, § 1, p. 304; R.S.1913, § 2628; C.S.1922, § 2456; C.S.1929, § 36-108; R.S.1943, § 36-107.
Annotations
1. Contracts within statute
2. Contracts not within statute
3. Signature to contracts
4. Form of contract
5. Essentials of contract
6. Oral modification
7. Actions on contract
8. Miscellaneous
1. Contracts within statute
Oral contract with broker to sell land or obtain purchaser for owner is void. Nelson v. Woodhouse, 112 Neb. 359, 199 N.W. 811 (1924).
Authority to sell is not extended by implication to include land not described. Spanogle v. Maple Grove Land & Live Stock Co., 104 Neb. 342, 177 N.W. 164 (1920).
An oral contract cannot be enforced by the broker or agent. In re Estate of Brockway, 100 Neb. 281, 159 N.W. 421 (1916).
Oral promise is unenforceable but is sufficient consideration for note. Mohr v. Rickgauer, 82 Neb. 398, 117 N.W. 950 (1908).
Voluntary act of both parties thereto is required to completely execute valid contract. Allen v. Hall, 64 Neb. 256, 89 N.W. 803 (1902).
2. Contracts not within statute
Real estate broker's contract of employment to make exchange of land is not governed by statute. Dunn v. Snell, 124 Neb. 560, 247 N.W. 428 (1933).
Sale should be distinguished from exchange of property. Gill v. Eagleton, 108 Neb. 179, 187 N.W. 871 (1922).
Parol contract for commissions for exchange of land is not required to be in writing. Sallack v. Freeman, 106 Neb. 299, 183 N.W. 297 (1921).
In an oral contract by a broker to assist in finding and purchasing personalty, a provision that certain realty shall be used in part payment at specified price will not make contract one for sale of land. In re Estate of Brockway, 100 Neb. 281, 159 N.W. 421 (1916).
Where an oral contract is made with agent for sale of real estate upon commission, and afterwards in order to satisfy the requirements of this section, the contract is reduced to writing before suit is brought, the contract may be enforced. Pierce v. Domon, 98 Neb. 120, 152 N.W. 299 (1915).
Contract by which one employs agent to assist him in making exchange of properties is not within statute. Nelson v. Nelson, 95 Neb. 523, 145 N.W. 1004 (1914).
Agreement between partners that one shall sell the real estate and have proceeds above certain amount is not within statute. Majors v. Majors, 92 Neb. 473, 138 N.W. 574 (1912).
Oral contracts for sale between sub-agent and agent of owner are valid. Reasoner v. Yates, 90 Neb. 757, 134 N.W. 651 (1912).
Section was not intended to apply to a sale made by the owner directly to a real estate agent. Waters v. Phelps, 81 Neb. 674, 116 N.W. 783 (1908).
Validity of oral contract by agent to purchase land for principal raised but not decided. Bolton v. Coburn, 78 Neb. 731, 111 N.W. 780 (1907).
Subsequent parol agreement, substituted for writing, will be upheld if executed. Lucas v. County Recorder of Cass County, 75 Neb. 351, 106 N.W. 217 (1905).
Middlemen employed to secure from a former proposed purchaser the renewal of a former offer made for the land are not agents. Johnson v. Hayward, 74 Neb. 157, 103 N.W. 1058 (1905), aff'd on rehearing, 74 Neb. 166, 107 N.W. 384 (1905).
An oral agreement between parties to obtain refinancing for an existing loan which is to be secured by real estate mortgages does not constitute a sale of land within the statute of frauds. Wright & Souza, Inc. v. DM Properties, 1 Neb. App. 822, 510 N.W.2d 413 (1993).
3. Signature to contracts
Writing held sufficient both as to signature and description. Svoboda v. De Wald, 159 Neb. 594, 68 N.W.2d 178 (1955).
Signature at top of instrument meets requirement. Dollarhide v. James, 107 Neb. 624, 186 N.W. 989 (1922).
Agent need not sign contract authorizing him to subscribe contract for sale of real estate for his principal. Principal's signature is sufficient. Seberger v. Wood, 106 Neb. 272, 183 N.W. 363 (1921).
Signature of broker printed under direction of brokers is sufficient. Berryman v. Childs, 98 Neb. 450, 153 N.W. 486 (1915).
Where contract is signed by one claiming to be owner, it is no defense that he was not owner. Valerius v. Luhring, 87 Neb. 425, 127 N.W. 112 (1910).
Subscribed means signed. Signature may be at top, bottom or middle. Myers v. Moore, 78 Neb. 448, 110 N.W. 989 (1907).
4. Form of contract
Letters between parties are sufficient and may create contract between principal and agent, though same papers are not signed by both parties. Shoff v. Ash, 95 Neb. 255, 145 N.W. 271 (1914); Pottratz v. Piper, 95 Neb. 145, 145 N.W. 265 (1914).
Contract need not necessarily be on a single paper, but may be evidenced by letters containing required terms and signed by respective parties. Bradley & Co. v. Bower, 5 Neb. Unof. 542, 99 N.W. 490 (1904).
5. Essentials of contract
Every contract for the sale of land between the landowner and a broker or agent employed to sell the land shall be in writing, signed by both parties, and shall describe the land and the compensation to be paid by the owner if the land is sold. Abboud v. Michals, 241 Neb. 747, 491 N.W.2d 34 (1992).
In the absence of a specific dollar amount or percentage of the sale price, or some other formula whereby the amount of commission may be calculated with reasonable certainty, the specified compensation requirement of this section is unsatisfied. Weiner v. Hazer, 230 Neb. 53, 430 N.W.2d 269 (1988).
Signature of a third party beneficiary under a contract for sale of real estate not an essential requirement of statute of frauds. Mid-Continent Properties, Inc. v. Pflug, 197 Neb. 429, 249 N.W.2d 476 (1977).
A sale of real estate made through a broker must be made in writing between the broker and the landowner. Donahoo v. Home of the Good Shepherd of Omaha, Inc., 193 Neb. 586, 228 N.W.2d 287 (1975).
The fact that separate documents are part of a total writing which will satisfy the statute of frauds must be disclosed by their contents or express references therein. Abboud v. Cir Cal Stables, 190 Neb. 396, 208 N.W.2d 682 (1973).
The terms under which the owner is willing to sell land need not be included in contract between broker and owner; and description of land in broker's contract was sufficient. Wisnieski v. Coufal, 188 Neb. 200, 195 N.W.2d 750 (1972).
In order to extend a contract for the sale of land by parol there must be a contract in existence. Property Sales, Inc. v. Irvington Ice Cream & Frozen Arts, Inc., 184 Neb. 17, 165 N.W.2d 78 (1969).
Terms of contract set out on carbon copy of purchase agreement were sufficient. Svoboda v. De Wald, 165 Neb. 50, 84 N.W.2d 211 (1957).
Agreement must be in writing subscribed by agent and owner and set forth compensation. VerMaas v. Culbertson, Roe & Bell, Inc., 154 Neb. 528, 48 N.W.2d 674 (1951).
Contract must be written, subscribed by the owner of land and broker, and set forth compensation to be allowed by owner. O'Shea & Son v. Leavitt, 125 Neb. 12, 248 N.W. 654 (1933).
Contract is void unless amount of commission is stated. Howell v. North, 93 Neb. 505, 140 N.W. 779 (1913); Danielson v. Goebel, 71 Neb. 300, 98 N.W. 819 (1904).
Memorandum setting forth total number of acres, accompanied by plat of land, sale price, and amount of commission to be paid, was sufficient. Clark v. Davies, 88 Neb. 67, 129 N.W. 165 (1910).
Description need not be specific if it contains sufficient data to identify land with certainty. Powers v. Bohuslav, 84 Neb. 179, 120 N.W. 942 (1909).
Description need not be specific if it can be made certain by parol without contradicting writing. Holliday v. McWilliams, 76 Neb. 324, 107 N.W. 578 (1906).
Price at which sale is to be made is not required to be shown and may be changed by parol. Rank v. Garvey, 66 Neb. 767, 92 N.W. 1025 (1902), aff'd on rehearing, 66 Neb. 784, 99 N.W. 666 (1902).
Terms not required to be in writing may be changed by parol agreement. Bradley & Co. v. Bower, 5 Neb. Unof. 542, 99 N.W. 490 (1904).
Parol acceptance by agent of written offer by owner is insufficient to comply with statute. Spence v. Apley, 4 Neb. Unof. 358, 94 N.W. 109 (1903).
Letters signed by owner and broker describing property and fixing commission in case of sale are sufficient to comply with statute. Massachusetts Mut. Life Ins. Co. v. George & Co., 148 F.2d 42 (8th Cir. 1945).
6. Oral modification
Party inducing reliance on oral modification of contract within statute of frauds will be estopped to claim invalidity of such oral modification. Hecht v. Marsh, 105 Neb. 502, 181 N.W. 135 (1920).
Agent cannot defend, in action for damages caused by his fraud, on ground that contract of agency was void because not in writing. Maul v. Cole, 94 Neb. 714, 144 N.W. 247 (1913).
There must be consideration for an oral modification of contract by waiving some of its requirements. Lincoln Realty Co. v. Garden City Land & Immigration Co., 94 Neb. 346, 143 N.W. 230 (1913).
If oral contract is fully executed by parties, and either party is damaged by fraud of the other, injured party may recover. Latson v. Buck, 87 Neb. 16, 126 N.W. 760 (1910).
7. Actions on contract
A contract for payment of a real estate commission is analogous to a contract for the sale of real estate, inasmuch as the same equitable principles govern both types of contracts in relation to the statute of frauds. Weiner v. Hazer, 230 Neb. 53, 430 N.W.2d 269 (1988).
Equitable enforcement of a brokerage contract, otherwise unenforceable due to this section, is available when the contract has been fully performed by one party and nonfulfillment of the contract would amount to a fraud on that party. Weiner v. Hazer, 230 Neb. 53, 430 N.W.2d 269 (1988).
While certain contracts are declared "void" under this section, such contracts are not void but are merely unenforceable for want of evidence which the statute requires. Weiner v. Hazer, 230 Neb. 53, 430 N.W.2d 269 (1988).
Broker withholding from principal material facts cannot recover commission. Pearlman v. Snitzer, 112 Neb. 135, 198 N.W. 879 (1924).
Petition disclosing on its face that contract was not in writing, is demurrable. Gill v. Eagleton, 108 Neb. 179, 187 N.W. 871 (1922); Smith v. Aultz, 78 Neb. 453, 110 N.W. 1015 (1907).
Petition not alleging that agreement was in writing is sufficient after judgment. Thackaberry v. Wilson, 90 Neb. 448, 133 N.W. 841 (1911).
A broker, relying on special contract, cannot recover on quantum meruit. Clark v. Davies, 88 Neb. 67, 129 N.W. 165 (1910); Rodenbrock v. Gress, 74 Neb. 409, 104 N.W. 758 (1905); Blair v. Austin, 71 Neb. 401, 98 N.W. 1040 (1904).
Agent may recover for breach of contract where agency is exclusive though commission was not earned. Hallstead v. Perrigo, 87 Neb. 128, 126 N.W. 1078 (1910).
Where agency contract to sell land is oral, recovery cannot be had under quantum meruit on basis of time expended or reasonable value of services. Nelson v. Webster, 83 Neb. 169, 119 N.W. 256 (1909); Barney v. Lasbury, 76 Neb. 701, 107 N.W. 989 (1906).
Agent, to recover, must show written contract, subscribed by parties, and setting forth his compensation. Tracy v. Dean, 77 Neb. 382, 109 N.W. 505 (1906).
Agency must be proved by writing and oral promise after sale is insufficient. Covey v. Henry, 71 Neb. 118, 98 N.W. 434 (1904).
Question of effect of failure to plead statute and to object to parol evidence as waiving defense was raised but not decided. Dillon v. Watson, 3 Neb. Unof. 530, 92 N.W. 156 (1902).
This section does not preclude recovery under an oral agreement for sales commission where broker has fully performed under the oral agreement. Kaus v. Bideaux, 709 F.2d 1221 (8th Cir. 1983).
8. Miscellaneous
A joint owner of land is an "owner" under this section, so that a joint owner of land who falsely represents sole ownership may not avoid full payment of a broker's commission. Marathon Realty Corp. v. Gavin, 224 Neb. 458, 398 N.W.2d 689 (1987).
A promissory note given by a vendor to a real estate broker and accepted by the broker in payment for a commission is enforceable even if there was no written sales contract between the vendor and the broker. Peterson & Vogt v. Livingston, 206 Neb. 753, 295 N.W.2d 106 (1980).
A real estate broker becomes the agent of the property owner, and owes the fiduciary duties incident thereto, from the moment the parties orally agree to the listing of the property. Vogt v. Town & Country Realty of Lincoln, Inc., 194 Neb. 308, 231 N.W.2d 496 (1975).
Where party enters into contract as vendor to sell land, he cannot be heard to say that he had no interest in the lands when sued for broker's commission. Sohler v. Christensen, 151 Neb. 843, 39 N.W.2d 837 (1949).
Statute is inapplicable to act authorizing agent by writing to subscribe contract for sale of land. Seberger v. Wood, 106 Neb. 272, 183 N.W. 363 (1921).
Section is constitutional. Baker v. Gillan, 68 Neb. 368, 94 N.W. 615 (1903).
36-201.
Repealed. Laws 1980, LB 814, § 14.
36-202.
Agreements; writing required, when.In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: (1) Every agreement that, by its terms, is not to be performed within one year from the making thereof; (2) every special promise to answer for the debt, default, or misdoings of another person; (3) every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry; (4) every special promise by an executor or administrator to answer damages out of his own estate; and (5) every agreement for the repurchase of corporate stocks, bonds or other securities.
Source:R.S.1866, c. 43, § 67, p. 293; R.S.1913, § 2630; C.S.1922, § 2458; C.S.1929, § 36-202; Laws 1937, c. 88, § 1, p. 289; C.S.Supp.,1941, § 36-202; R.S.1943, § 36-202.
Annotations
1. Agreements not to be performed within one year
2. Contracts of guaranty
3. Contracts of marriage
4. Miscellaneous
1. Agreements not to be performed within one year
To determine whether an oral agreement falls within the one year provision of the statute of frauds, a court considers only the terms of the agreement to decide whether the contract is capable of being performed within one year of its formation; a court does not ask whether the contract may, or probably will, not be performed within one year. Bruce Lavalleur, P.C. v. Guarantee Group, 314 Neb. 698, 992 N.W.2d 736 (2023).
To state the rule in positive terms, an oral agreement is valid under subsection (1) of this section if it is capable of being performed within 1 year of the making of the contract. Rath v. Selection Research, Inc., 246 Neb. 340, 519 N.W.2d 503 (1994).
There was no support in the evidence for defense that contract was void for the reason that performance was not required within one year. Maseberg v. Mercer, 176 Neb. 668, 127 N.W.2d 208 (1964).
A contract is not within the statute of frauds merely because it might not be performed within a year. Empson v. Deuel County State Bank, 134 Neb. 597, 279 N.W. 293 (1938).
Cashier and managing officer of bank who endorsed note to it was estopped to set up defense of statute of frauds based upon claim that he had not signed extension agreement and payment was not to be made within one year. Atlas Corporation v. Magdanz, 130 Neb. 519, 265 N.W. 743 (1936).
Seller's oral agreement to repurchase bonds is not void unless terms indicate that it is not to be performed within one year from the making thereof. Johnson v. First Trust Co., 130 Neb. 77, 264 N.W. 152 (1936).
Oral agreements wholly performed on one side within a year are not void under statute of frauds. In re Estate of Black, 125 Neb. 75, 249 N.W. 84 (1933).
Oral agreement is not void unless its terms indicate that it is not to be performed within one year from the making thereof. Johnson v. First Trust Co., 125 Neb. 26, 248 N.W. 815 (1933).
A cash sale of stock upon an agreement whereby the seller undertakes to repurchase at the buyer's option constitutes an entire and indivisible transaction sufficiently performed to take it out of the provisions of this section even though the repurchase agreement is oral. Grotte v. Rachman, 114 Neb. 284, 207 N.W. 204 (1926); Stratbucker v. Bankers Realty Inv. Co., 107 Neb. 194, 185 N.W. 271 (1921).
Section does not refer to such contracts as may possibly or probably not be performed within one year. Simmons v. Simmons, 95 Neb. 607, 146 N.W. 951 (1914); Carter White Lead Co. v. Kinlin, 47 Neb. 409, 66 N.W. 536 (1896).
Where fully performed by both parties, contract is enforceable, though incidental matters extend several years. Platte Independent Tel. Co. v. Leigh Independent Tel. Co., 80 Neb. 41, 116 N.W. 511 (1907).
Agreement for services for one year, to commence day after contract is made, is void. Riiff v. Riibe, 68 Neb. 543, 94 N.W. 517 (1903).
Oral promise made to marry a girl, then fifteen, when she became eighteen, is unenforceable. Barge v. Haslan, 63 Neb. 296, 88 N.W. 516 (1901).
Contract made April 10 to continue one year from April 12 is void. Reynolds v. 1st Nat. Bank of Wymore, 62 Neb. 747, 87 N.W. 912 (1901).
Oral contract is valid when, by fair and reasonable construction, it is capable of being performed within year. Reynolds v. 1st Nat. Bank of Wymore, 62 Neb. 747, 87 N.W. 912 (1901); Powder River Live Stock Co. v. Lamb, 38 Neb. 339, 56 N.W. 1019 (1893).
Full performance on one side within the year takes contract out of statute. Kendall v. Garneau, 55 Neb. 403, 75 N.W. 852 (1898).
Contract of employment as long as works were kept or until plaintiff saw fit to quit, is valid. Carter White Lead Co. v. Kinlin, 47 Neb. 409, 66 N.W. 536 (1896).
Contract of hiring made December 19 for one year commencing January 1 following, is void, and is not taken out of statute because of monthly payments. K. C. W. & N. W. R. Co. v. Conlee, 43 Neb. 121, 61 N.W. 111 (1894).
Contract that party shall pay market price on any day selected by other, between and within two years, is not within statute. Powder River Live Stock Co. v. Lamb, 38 Neb. 339, 56 N.W. 1019 (1893).
Contract is not void unless its very terms show it is not to be completed in a year. Kiene v. Shaeffing, 33 Neb. 21, 49 N.W. 773 (1891).
Contract of landlord to purchase building erected by tenant, at any time tenant might give up possession, may be performed in one year. Connolly v. Giddings, 24 Neb. 131, 37 N.W. 939 (1888).
Contract enforceable when only signed by defendant where court found both parties had ratified it by acting under its provisions over a long period of time. Heaton Distributing Co., Inc. v. Union Tank Car Co., 387 F.2d 477 (8th Cir. 1967).
Oral contract of employment for a term of less than one year is not required to be in writing. Wilkins v. Kendle, 287 F.2d 201 (8th Cir. 1961).
2. Contracts of guaranty
A guarantor's promise, entered into independently of the original transaction, must be in writing and supported by a consideration distinct from that of the original debt. Spittler v. Nicola, 239 Neb. 972, 479 N.W.2d 803 (1992).
Where the leading object or main purpose of a party promising to pay the debts of another is to promote his own interest, and not to become a guarantor, and the promise is made on sufficient consideration the statute of frauds is not applicable and the promise will be valid although not in writing. Branham v. McGinnis, 203 Neb. 664, 280 N.W.2d 47 (1979).
Oral agreement to pay primary debt of another antecedently contracted is within statute of frauds. Otto Gas, Inc. v. Stewart, 160 Neb. 200, 69 N.W.2d 545 (1955).
Where owner promised to pay subcontractor if contractor did not, promise was collateral and within statute. King v. Schmall, 156 Neb. 635, 57 N.W.2d 287 (1953).
Promise by father to pay divorced wife of son part of amount adjudged due from son for child support was collateral and within statute. In re Estate of Allen, 147 Neb. 909, 25 N.W.2d 757 (1947).
Oral agreement to pay a primary debt of another antecedently contracted, without new consideration moving to the promisor, is within the statute of frauds. Johnson v. Anderson, 140 Neb. 78, 299 N.W. 343 (1941).
Where goods, money or services are furnished to a third person at the request and on the credit of the promisor, the undertaking is original and the promisor will be liable although the promise is not in writing. Elson v. Nelson, 132 Neb. 532, 272 N.W. 551 (1937).
Where evidence is conflicting on whether promise to pay for merchandise furnished another was an original promise or collateral undertaking, question should be left to jury. Farmers Grain, Lumber & Coal Co. v. Taylor, 119 Neb. 216, 228 N.W. 253 (1929).
Where another remains liable for debt, promise is within statute, though it was inducement for services rendered debtor. Union Loan & Savings Assn. v. Johnson, 118 Neb. 17, 223 N.W. 467 (1929); Williams v. Auten, 68 Neb. 26, 93 N.W. 943 (1903); Swigart v. Gentert, 63 Neb. 157, 88 N.W. 159 (1901).
Oral promise of payee, based on new consideration, to pay purchase-money notes transferred by him, is valid. Stanton Nat. Bank v. Swallow, 113 Neb. 336, 203 N.W. 561 (1925).
Oral promise of officer of corporation to purchaser of stock that he would repay purchase price at any time is valid. Griffin v. Bankers' Realty Inv. Co., 105 Neb. 419, 181 N.W. 169 (1920); Trenholm v. Kloepper, 88 Neb. 236, 129 N.W. 436 (1911).
Promise by president that bank would accept notes held by purchaser of stock and indemnify purchaser against action on endorsement is valid. Patrick v. Barker, 78 Neb. 823, 112 N.W. 358 (1907).
Promise to pay debt of partner if levy on partnership property is released is valid. Swayne v. Hill, 59 Neb. 652, 81 N.W. 855 (1900).
Where leading purpose of promisor is to promote some interest of his own, if promise is on sufficient consideration, it is enforceable. Swayne v. Hill, 59 Neb. 652, 81 N.W. 855 (1900); Fitzgerald v. Morrissey, 14 Neb. 198, 15 N.W. 233 (1883).
Promise by beneficiary in fraternal insurance policy to pay debt of insured creates no trust and is unenforceable. Fisher v. Donovan, 57 Neb. 361, 77 N.W. 778 (1899).
Verbal guaranty of payment, by agents, where principal has no legal existence is valid. Learn v. Upstill, 52 Neb. 271, 72 N.W. 213 (1897).
A promise to indemnify a person if he will become security for debt due to a third person is an original promise and not within the statute. Minick v. Huff, 41 Neb. 516, 59 N.W. 795 (1894).
Promise by mortgagee to pay debt due one in possession of property of mortgagor under verbal lien, if property is surrendered, is enforceable where surrender is benefit to promisor. Joseph v. Smith, 39 Neb. 259, 57 N.W. 1012 (1894).
A promise that he would protect company for goods to be furnished another is valid. Sheehy v. Fulton, 38 Neb. 691, 57 N.W. 395 (1894).
Oral promise of contractor to pay for material to be furnished subcontractor is valid. Barras v. Pomeroy Coal Co., 38 Neb. 311, 56 N.W. 890 (1893).
An oral promise of buyer of livery stable to pay wages which seller owed employee is valid. Barnett v. Pratt, 37 Neb. 349, 55 N.W. 1050 (1893).
Where goods or services are furnished to third person on request and credit of promisor, contract is valid. Peyson v. Conniff, 32 Neb. 269, 49 N.W. 340 (1891).
Where credit is given contemporaneously with, or after, and upon faith of oral promise to pay for goods delivered to another, promisor is liable. Lindsey v. Heaton, 27 Neb. 662, 43 N.W. 420 (1889).
Promise by creditor, to whom insolvent debtor conveyed property, that he would pay debt due another if not disturbed in possession of goods is valid. Rogers v. Empkie Hardware Co., 24 Neb. 653, 39 N.W. 844 (1888).
A promise of son to pay physician for attending his mother is valid. Clay v. Tyson, 19 Neb. 530, 26 N.W. 240 (1886).
Oral promise to pay debt in consideration that property be transferred by debtor to promisor is valid. Clay v. Tyson, 19 Neb. 530, 26 N.W. 240 (1886).
Where owner of property, on which building was being erected, orally promised employee of contractor that he would see that the debt the contractor owed him was paid, it was a collateral undertaking and void. Morrissey v. Kinsey, 16 Neb. 17, 19 N.W. 454 (1884).
Promise of husband to pay for stove purchased by wife, after she had requested seller to take it back, was an original undertaking and valid. Palmer v. Witcherly, 15 Neb. 98, 17 N.W. 364 (1883).
Oral promise to pay another's debt, as part consideration for property sold promisor, is valid. Clopper v. Poland, 12 Neb. 69, 10 N.W. 538 (1881).
I will see that you are paid is promise to answer for another's debt for past and future services. Rose v. O'Linn, 10 Neb. 364, 6 N.W. 430 (1880).
Promise by defendant to pay attorney fees of plaintiff on dismissal of action is valid. Weilage v. Abbott, 3 Neb. Unof. 157, 90 N.W. 1128 (1902).
Promise by grantee to pay part of consideration to creditor of grantor is enforceable by creditor. Dodd v. Skelton, 2 Neb. Unof. 475, 89 N.W. 297 (1902).
3. Contracts of marriage
Oral contract in consideration of marriage is void. Mallett v. Grunke, 107 Neb. 173, 185 N.W. 310 (1921); Fischer v. Fischer, 106 Neb. 477, 184 N.W. 116 (1921).
Oral agreement by man that in consideration of marriage he will make child of woman equal heir with others is void. Fischer v. Fischer, 106 Neb. 477, 184 N.W. 116 (1921).
If marriage is not to be performed within year, promise is unenforceable. Barge v. Haslam, 63 Neb. 296, 88 N.W. 516 (1901).
4. Miscellaneous
"Memorandum" consisting of classified advertisement of job in newspaper, which did not contain essential terms of contract, such as salary, held insufficient to take contract out of provision of this section. McBride v. City of McCook, 212 Neb. 112, 321 N.W.2d 905 (1982).
It is error to instruct on a theory not raised by the pleadings, over objection, not having afforded opponent opportunity to plead to that theory or present evidence thereon. Montgomery v. Quantum Labs, Inc., 198 Neb. 160, 251 N.W.2d 892 (1977).
An agreement without consideration is nudum pactum and unenforceable whether within or without statute of frauds. Grimes v. Baker, 133 Neb. 517, 275 N.W. 860 (1937).
Written promise for another's debt default or misdoings is void as to person whose name is subscribed thereto by one not authorized in writing. Massachusetts Bonding & Ins. Co. v. Nichols, 117 Neb. 93, 219 N.W. 837 (1928).
Note and mortgage are sufficient memorandum of promise to secure debt of another. McLanahan v. Chamberlain, 85 Neb. 850, 124 N.W. 684 (1910).
Subscribed means signed and signature may be any place on instrument. Myers v. Moore, 78 Neb. 448, 110 N.W. 989 (1907).
Oral acknowledgment of verbal contract, made within the year for performance, does not validate. Haslam v. Barge, 69 Neb. 644, 96 N.W. 245 (1903).
Defense may be raised under general denial. Riiff v. Riibe, 68 Neb. 543, 94 N.W. 517 (1903).
Memorandum executed subsequent to oral promise needs no new consideration. Sheehy v. Fulton, 38 Neb. 691, 57 N.W. 395 (1894).
Letter to judgment creditor, by one holding debtor's property, is sufficient memorandum. Kenney v. Hews, 26 Neb. 213, 41 N.W. 1006 (1889).
Contracts performed are not within statute. Milner v. Harris, 1 Neb. Unof. 584, 95 N.W. 682 (1901).
The "leading object rule" applied as an exception to the statute of frauds in this case and rendered the oral promise to pay the debt of another enforceable. Under the leading object rule, a promise to answer for the debt of another will be valid, although not in writing, when the principal object of the party promising to pay the debt is to promote his or her own interests—and not to become a guarantor or surety—and when the promise is made on sufficient consideration. Alliance Group v. NGC Group, 30 Neb. App. 439, 970 N.W.2d 505 (2021).
Memorandum of an agreement was insufficient to take the contract out of the statute of frauds because it did not contain the essential elements of the contract. Ancom, Inc. v. E. R. Squibb & Sons, Inc., 658 F.2d 650 (8th Cir. 1981).
36-203.
Auctioneer's memorandum, how construed.Whenever goods shall be sold at public auction, and the auctioneer shall, at the time of the sale, enter in a sale book a memorandum specifying the nature and price of the property sold, the terms of sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of section 2-201, Uniform Commercial Code.
Source:R.S.1866, c. 43, § 69, p. 294; R.S.1913, § 2632; C.S.1922, § 2460; C.S.1929, § 36-204; R.S.1943, § 36-203;
Laws 1972, LB 1056, § 1.
36-204.
Repealed. Laws 1980, LB 814, § 14.
36-205.
Repealed. Laws 1980, LB 814, § 14.
36-206.
Repealed. Laws 1980, LB 814, § 14.
36-207.
Repealed. Laws 1963, c. 544, art. 10, § 1.
36-208.
Repealed. Laws 1963, c. 544, art. 10, § 1.
36-209.
Repealed. Laws 1963, c. 544, art. 10, § 1.
36-210.
Repealed. Laws 1963, c. 544, art. 10, § 1.
36-211.
Motion picture films; contracts for rental; deposits a trust fund; safekeeping.Whenever money shall be deposited or advanced as security on a contract for the use or rental of motion picture films, reels or views, and to secure the performance of the contract or to be applied to payments upon such contract when due, such money, with interest accruing thereon, if any, until repaid or so applied, shall continue to be the money of the person, association or corporation making such deposit or advance and shall be a trust fund in the possession of the person, association or corporation with whom such deposit or advance shall be made, and shall be deposited in a bank or trust company within the State of Nebraska, and shall not be mingled with other funds or become an asset of such trustee.
Source:Laws 1921, c. 196, § 1, p. 716; C.S.1922, § 2468; C.S.1929, § 36-212; R.S.1943, § 36-211.
36-212.
Motion picture films; contracts for rental; deposits; waiver of rights void.Any provision of a contract whereby a person, association or corporation, who has deposited or advanced money on a contract for the use or rental of motion picture films, reels, or views as personal property, waives any provision of section 36-211, is void.
Source:Laws 1921, c. 196, § 2, p. 716; C.S.1922, § 2469; C.S.1929, § 36-213; R.S.1943, § 36-212.
36-213.
Assignment of wages by head of family; similar transactions; limitations; when void.Except as provided in the Income Withholding for Child Support Act, every assignment of the wages or earnings of the head of a family and every contract or agreement intending or purporting to have the effect of such assignment shall be void unless such contract, agreement, assignment, or transfer is executed and acknowledged by both husband and wife in the same manner that conveyances of real estate are required to be signed and acknowledged by the laws of this state and shall be limited to a percentage of the wages of the head of household not greater than that subject to the operation of attachment, execution, and garnishee process as provided in section 25-1558. Nothing contained in this section shall be construed to void payroll deductions by the employer if such wages or earnings so deducted are for (1) purchase of government bonds, (2) contributions to charity, or (3) payment of employee organization dues, of group or individual insurance premiums, of pension assessments, to credit unions, or for a savings plan, in accordance with a written order of the employee which has been accepted by the employer. Every such assignment shall specify the employer who will pay the wages that are the subject of the assignment, and the assignment shall be valid only as to wages due from the employer or employers so specified. It shall be unlawful for any person, firm, corporation, company, partnership, limited liability company, or business institution to cause any employer by any such void assignment or by notice of any such void assignment to withhold the payment of any wages due the head of a family.
Source:Laws 1939, c. 39, § 1, p. 195; C.S.Supp.,1941, § 36-214; R.S.1943, § 36-213; Laws 1949, c. 99, § 1(1), p. 273; Laws 1969, c. 287, § 1, p. 1056;
Laws 1972, LB 781, § 1; Laws 1993, LB 121, § 198; Laws 1994, LB 1224, § 41.
Cross References
Income Withholding for Child Support Act, see section 43-1701.
Wage assignments to secure loans, requirements, see sections 45-1028 and 45-1030.
36-213.01.
Assignment of wages by head of family; violation; penalty.Any person, firm, corporation, company, partnership, limited liability company, or business institution that violates section 36-213 shall (1) be liable to the party injured through such violation thereof for the amount of the wages withheld by any employer under such void assignment or notice of such void assignment, with all costs and expenses and a reasonable attorney's fee to be recovered in any court of competent jurisdiction in this state, and (2) be guilty of a Class IV misdemeanor.
Source:Laws 1939, c. 39, § 1, p. 195; C.S.Supp.,1941, § 36-214; R.S.1943, § 36-213; Laws 1949, c. 99, § 1(2), p. 274;
Laws 1977, LB 40, § 171; Laws 1993, LB 121, § 199.
36-301.
Repealed. Laws 1963, c. 544, art. 10, § 1.
36-302.
Repealed. Laws 1963, c. 544, art. 10, § 1.
36-303.
Repealed. Laws 1963, c. 544, art. 10, § 1.
36-401.
Repealed. Laws 1980, LB 814, § 14.
36-402.
Lands; estate and interest in lands, defined.The term lands, as used in sections 36-402 to 36-409, shall be construed as coextensive in meaning with lands, tenements, and hereditaments, and the term estate and interest in lands, shall be construed to embrace every estate and interest, freehold and chattel, legal and equitable, present and future, vested and contingent, in lands, as above described.
Source:R.S.1866, c. 43, § 81, p. 296; R.S.1913, § 2627; C.S.1922, § 2455; C.S.1929, § 36-107; R.S.1943, § 36-402.
36-403.
Repealed. Laws 1980, LB 814, § 14.
36-404.
Grant or assignment of existing trust; when void.Every grant or assignment of any existing trust in lands, goods or things in action, unless the same shall be in writing, subscribed by the party making the same, shall be void.
Source:R.S.1866, c. 43, § 77, p. 296; R.S.1913, § 2645; C.S.1922, § 2555; C.S.1929, § 36-403; R.S.1943, § 36-404.
36-405.
Repealed. Laws 1980, LB 814, § 14.
36-406.
Repealed. Laws 1980, LB 814, § 14.
36-407.
Repealed. Laws 1980, LB 814, § 14.
36-408.
Consideration; how proved.The consideration of any contract or agreement, required by the provisions of sections 36-103 to 36-106 and 36-202 to be in writing, need not be set forth in the contract or agreement or in the note or memorandum thereof, but may be proved by any other legal evidence.
Source:R.S.1866, c. 43, § 83, p. 296; R.S.1913, § 2649; C.S.1922, § 2559; C.S.1929, § 36-407; R.S.1943, § 36-408;
Laws 1971, LB 15, § 1.
Annotations
Burden resting upon grantee of proving consideration applies only to contracts and agreements. Sampson v. Sissel, 151 Neb. 521, 38 N.W.2d 341 (1949).
Where no consideration is shown in written contract, parol evidence is admissible to prove consideration. Rhodes v. Lewis, 136 Neb. 870, 287 N.W. 662 (1939).
Consideration is not presumed, and must be proved even in contracts required to be in writing. Miller v. Crosson, 131 Neb. 88, 267 N.W. 145 (1936).
In absence of fraudulent intent, a person, whether solvent or insolvent, may make disposition of his property based on valid consideration as his judgment dictates. State Bank of Beaver Crossing v. Mackley, 121 Neb. 28, 236 N.W. 165 (1931).
Memorandum need not state consideration or terms and conditions of payment. Ruzicka v. Hotovy, 72 Neb. 589, 101 N.W. 328 (1904).
Consideration may be proved by parol. Barton v. Patrick, 20 Neb. 654, 31 N.W. 370 (1886).
36-409.
Agent; authority to subscribe.Every instrument required by any of the provisions of sections 36-103 to 36-106, 36-202, and 36-402 to 36-409 to be subscribed by any party, may be subscribed by his agent thereunto authorized by writing.
Source:R.S.1866, c. 43, § 84, p. 297; R.S.1913, § 2650; C.S.1922, § 2560; C.S.1929, § 36-408; R.S.1943, § 36-409;
Laws 1971, LB 15, § 2.
Annotations
1. Authority of agent to sign
2. Sufficiency of writing
3. Miscellaneous
1. Authority of agent to sign
A listing of property for sale is merely an employment contract and if the parties intend that the agent shall have authority to sign a sales contract it should be expressly and clearly stated in writing. Brezina v. Hill, 195 Neb. 481, 238 N.W.2d 903 (1976).
Telegram stating terms at which principal will sell is insufficient as written authority to sell land. Shelby v. Platte Valley Public Power and Irr. Dist., 134 Neb. 354, 278 N.W. 568 (1938).
A sale of real property is binding upon the owner when subscribed by his agent who has been authorized in writing by the owner to enter into the contract. Seberger v. Wood, 106 Neb. 272, 183 N.W. 363 (1921).
Letter stating terms at which principal will sell is insufficient. Ross v. Craven, 84 Neb. 520, 121 N.W. 451 (1909).
Contract for sale of lands signed by agent for principal is void unless agent is authorized in writing. Miller v. Wehrman, 81 Neb. 388, 115 N.W. 1078 (1908); Frahm v. Metcalf, 75 Neb. 241, 106 N.W. 227 (1905); O'Shea v. Rice, 49 Neb. 893, 69 N.W. 308 (1896); Morgan v. Bergen, 3 Neb. 209 (1874).
Purchaser is charged with notice of contents of writing authorizing agent to sell. Miller v. Wehrman, 81 Neb. 388, 115 N.W. 1078 (1908).
Contract signed by agent for principal, not authorized, may be ratified in writing. Lutjeharms v. Smith, 76 Neb. 260, 107 N.W. 256 (1906).
Where contract is executed in presence of principal, agent's authority need not be written. Bigler v. Baker, 40 Neb. 325, 58 N.W. 1026 (1894).
2. Sufficiency of writing
Letter, You may go ahead and close deal, is sufficient. Furse v. Lambert, 85 Neb. 739, 124 N.W. 146 (1910).
Letter to agent I still have and would sell for $3,000 cash, etc., is sufficient. Weaver v. Snively, 73 Neb. 35, 102 N.W. 77 (1905).
3. Miscellaneous
Written promise to answer for debt of another is void as to person whose name is subscribed thereto by one not authorized by writing. Massachusetts Bonding & Ins. Co. v. Nichols, 117 Neb. 93, 219 N.W. 837 (1928).
Contract in agent's name does not bind principal though described as agent of principal. Fowler v. McKay, 88 Neb. 387, 129 N.W. 551 (1911).
Agent may contract for purchase of land for principal without written authority. Johnson v. Hayward, 74 Neb. 157, 103 N.W. 1058 (1905), aff'd on rehearing, 74 Neb. 166, 107 N.W. 384 (1905); Morrow v. Jones, 41 Neb. 867, 60 N.W. 369 (1894).
A married woman may mortgage her real estate through an attorney in fact. Linton v. National Life Ins. Co., 104 F. 584 (8th Cir. 1900).
36-501.
Repealed. Laws 1963, c. 544, art. 10, § 1.
36-502.
Repealed. Laws 1963, c. 544, art. 10, § 1.
36-601.
Repealed. Laws 1989, LB 423, § 13.
36-602.
Repealed. Laws 1989, LB 423, § 13.
36-603.
Repealed. Laws 1989, LB 423, § 13.
36-604.
Repealed. Laws 1989, LB 423, § 13.
36-605.
Repealed. Laws 1989, LB 423, § 13.
36-606.
Repealed. Laws 1989, LB 423, § 13.
36-607.
Repealed. Laws 1989, LB 423, § 13.
36-608.
Repealed. Laws 1989, LB 423, § 13.
36-609.
Repealed. Laws 1989, LB 423, § 13.
36-610.
Repealed. Laws 1989, LB 423, § 13.
36-610.01.
Repealed. Laws 1989, LB 423, § 13.
36-611.
Repealed. Laws 1989, LB 423, § 13.
36-612.
Repealed. Laws 1989, LB 423, § 13.
36-613.
Repealed. Laws 1989, LB 423, § 13.
36-701.
Repealed. Laws 2019, LB70, § 20.
36-702.
Repealed. Laws 2019, LB70, § 20.
36-703.
Repealed. Laws 2019, LB70, § 20.
36-704.
Repealed. Laws 2019, LB70, § 20.
36-705.
Repealed. Laws 2019, LB70, § 20.
36-706.
Repealed. Laws 2019, LB70, § 20.
36-707.
Repealed. Laws 2019, LB70, § 20.
36-708.
Repealed. Laws 2019, LB70, § 20.
36-709.
Repealed. Laws 2019, LB70, § 20.
36-710.
Repealed. Laws 2019, LB70, § 20.
36-711.
Repealed. Laws 2019, LB70, § 20.
36-712.
Repealed. Laws 2019, LB70, § 20.
36-801.
Short title.Sections 36-801 to 36-815 shall be known and may be cited as the Uniform Voidable Transactions Act.
Annotations
1. Prior law (Uniform Fraudulent Transfer Act, sections 36-701 to 36-712)
A person seeking to set aside a transfer under the Uniform Fraudulent Transfer Act must first prove that he or she is a "creditor" and that the party against whom relief is sought is a "debtor." Reed v. Reed, 275 Neb. 418, 747 N.W.2d 18 (2008).
An appeal of a district court’s determination that a transfer of an asset was not in violation of the Uniform Fraudulent Transfer Act is equitable in nature. Parker v. Parker, 268 Neb. 187, 681 N.W.2d 735 (2004).
A renunciation properly effected pursuant to section 30-2352 and prior to distribution is not a transfer and therefore not a fraudulent transfer under the Uniform Fraudulent Transfer Act. Essen v. Gilmore, 259 Neb. 55, 607 N.W.2d 829 (2000).
An appeal of a district court's determination that transfers of assets were in violation of the Uniform Fraudulent Transfer Act is equitable in nature. In an action seeking to set aside a fraudulent transfer, the burden of proof is on a creditor to prove, by clear and convincing evidence, that fraud existed in a questioned transaction. Eli's, Inc. v. Lemen, 256 Neb. 515, 591 N.W.2d 543 (1999).
An action seeking to declare a transfer fraudulent as to a creditor invokes equity jurisdiction of a court. In an action seeking to set aside a fraudulent transfer, the burden of proof is on a creditor to prove, by clear and convincing evidence, that fraud existed in a questioned transaction. Dillon Tire, Inc. v. Fifer, 256 Neb. 147, 589 N.W.2d 137 (1999).
An action which arose prior to the August 25, 1989, effective date of the Uniform Fraudulent Transfer Act is governed by the previous act, the Uniform Fraudulent Conveyance Act. Holthaus v. Parsons, 238 Neb. 223, 469 N.W.2d 536 (1991).
36-802.
Definitions.As used in the Uniform Voidable Transactions Act:
(1) Affiliate means:
(i) a person that directly or indirectly owns, controls, or holds with power to vote, twenty percent or more of the outstanding voting securities of the debtor, other than a person that holds the securities:
(A) as a fiduciary or agent without sole discretionary power to vote the securities; or
(B) solely to secure a debt, if the person has not in fact exercised the power to vote;
(ii) a corporation twenty percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the debtor or a person that directly or indirectly owns, controls, or holds, with power to vote, twenty percent or more of the outstanding voting securities of the debtor, other than a person that holds the securities:
(A) as a fiduciary or agent without sole discretionary power to vote the securities; or
(B) solely to secure a debt, if the person has not in fact exercised the power to vote;
(iii) a person whose business is operated by the debtor under a lease or other agreement, or a person substantially all of whose assets are controlled by the debtor; or
(iv) a person that operates the debtor's business under a lease or other agreement or controls substantially all of the debtor's assets.
(2) Asset means property of a debtor, but the term does not include:
(i) property to the extent it is encumbered by a valid lien;
(ii) property to the extent it is generally exempt under nonbankruptcy law; or
(iii) an interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.
(3) Claim, except as used in claim for relief, means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.
(4) Creditor means a person that has a claim.
(5) Debt means liability on a claim.
(6) Debtor means a person that is liable on a claim.
(7) Electronic means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(8) Insider includes:
(i) if the debtor is an individual:
(A) a relative of the debtor or of a general partner of the debtor;
(B) a partnership in which the debtor is a general partner;
(C) a general partner in a partnership described in subdivision (8)(i)(B) of this section; or
(D) a corporation of which the debtor is a director, officer, or person in control;
(ii) if the debtor is a corporation:
(A) a director of the debtor;
(B) an officer of the debtor;
(C) a person in control of the debtor;
(D) a partnership in which the debtor is a general partner;
(E) a general partner in a partnership described in subdivision (8)(ii)(D) of this section; or
(F) a relative of a general partner, director, officer, or person in control of the debtor;
(iii) if the debtor is a partnership:
(A) a general partner in the debtor;
(B) a relative of a general partner in, a general partner of, or a person in control of the debtor;
(C) another partnership in which the debtor is a general partner;
(D) a general partner in a partnership described in subdivision (8)(iii)(C) of this section; or
(E) a person in control of the debtor;
(iv) an affiliate, or an insider of an affiliate as if the affiliate were the debtor; and
(v) a managing agent of the debtor.
(9) Lien means a charge against or an interest in property to secure payment of a debt or performance of an obligation, and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common-law lien, or a statutory lien.
(10) Organization means a person other than an individual.
(11) Person means an individual, estate, partnership, association, trust, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal or commercial entity.
(12) Property means anything that may be the subject of ownership.
(13) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(14) Relative means an individual related by consanguinity within the third degree as determined by the common law, a spouse, or an individual related to a spouse within the third degree as so determined, and includes an individual in an adoptive relationship within the third degree.
(15) Sign means, with present intent to authenticate or adopt a record:
(i) to execute or adopt a tangible symbol; or
(ii) to attach to or logically associate with the record an electronic symbol, sound, or process.
(16) Transfer means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, license, and creation of a lien or other encumbrance.
(17) Valid lien means a lien that is effective against the holder of a judicial lien subsequently obtained by legal or equitable process or proceedings.
Annotations
1. Prior law (uniform Fraudulent Transfer Act, sections 36-701 to 36-712)
A blanket security agreement does not convey an asset under the Uniform Fraudulent Transfer Act if everything subject to ownership that is described as collateral therein is fully encumbered by other creditors with superior claims at the time of the alleged transfer. Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).
A security agreement by the debtor in favor of an alleged transferee is not the "asset" itself. Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).
Creditors are not entitled to avoid as fraudulent a conveyance of property to which the debtor had no title at all or no such title as they could have subjected to payment of their claims. Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).
Liens and encumbrances do not exist independently of the interests they attach to, and the reference in subsection (12) of this section to liens or other encumbrances does not modify the express requirement that there be an "asset" before there can be a "transfer." Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).
Where the focus of a fraudulent transfer action is a security agreement by the debtor in favor of the alleged transferee, the question is what identifiable and legitimate claim of entitlement the debtor had, in which the debtor transferred an interest via the security agreement. Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).
Whether there is a subject of ownership constituting property that can be an asset depends on a legitimate and identifiable claim of entitlement. Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).
Pursuant to subsection (3) of section 36-702, a spouse's right to an equitable distribution of the marital estate is not a "right to payment" under the Uniform Fraudulent Transfer Act. Reed v. Reed, 275 Neb. 418, 747 N.W.2d 18 (2008).
Under subdivision (7)(i)(A) of section 36-702, an ex-wife does not count as an "insider." Parker v. Parker, 268 Neb. 187, 681 N.W.2d 735 (2004).
When original conveyances of property held in joint tenancy take place long before plaintiff's claim arises, the operation of common-law joint tenancy does not qualify as a transfer as defined in subsection (12) of this section. Mahlin v. Goc, 249 Neb. 951, 547 N.W.2d 129 (1996).
36-803.
Insolvency.(a) A debtor is insolvent if, at a fair valuation, the sum of the debtor's debts is greater than the sum of the debtor's assets.
(b) A debtor that is generally not paying the debtor's debts as they become due other than as a result of a bona fide dispute is presumed to be insolvent. The presumption imposes on the party against which the presumption is directed the burden of proving that the nonexistence of insolvency is more probable than its existence.
(c) Assets under this section do not include property that has been transferred, concealed, or removed with intent to hinder, delay, or defraud creditors or that has been transferred in a manner making the transfer voidable under the Uniform Voidable Transactions Act.
(d) Debts under this section do not include an obligation to the extent it is secured by a valid lien on property of the debtor not included as an asset.
36-804.
Value.(a) Value is given for a transfer or an obligation if, in exchange for the transfer or obligation, property is transferred or an antecedent debt is secured or satisfied, but value does not include an unperformed promise made otherwise than in the ordinary course of the promisor's business to furnish support to the debtor or another person.
(b) For the purposes of subdivision (a)(2) of section 36-805 and section 36-806, a person gives a reasonably equivalent value if the person acquires an interest of the debtor in an asset pursuant to a regularly conducted, noncollusive foreclosure sale or execution of a power of sale for the acquisition or disposition of the interest of the debtor upon default under a mortgage, deed of trust, or security agreement.
(c) A transfer is made for present value if the exchange between the debtor and the transferee is intended by them to be contemporaneous and is in fact substantially contemporaneous.
36-805.
Transfer or obligation voidable as to present or future creditor.(a) A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or
(2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:
(i) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
(ii) intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor's ability to pay as they became due.
(b) In determining actual intent under subdivision (a)(1) of this section, consideration may be given, among other factors, to whether:
(1) the transfer or obligation was to an insider;
(2) the debtor retained possession or control of the property transferred after the transfer;
(3) the transfer or obligation was disclosed or concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(5) the transfer was of substantially all the debtor's assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and
(11) the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor.
(c) A creditor making a claim for relief under subsection (a) of this section has the burden of proving the elements of the claim for relief by a preponderance of the evidence.
36-806.
Transfer or obligation voidable as to present creditor.(a) A transfer made or obligation incurred by a debtor is voidable as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.
(b) A transfer made by a debtor is voidable as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent.
(c) Subject to subsection (b) of section 36-803, a creditor making a claim for relief under subsection (a) or (b) of this section has the burden of proving the elements of the claim for relief by a preponderance of the evidence.
36-807.
When transfer is made or obligation is incurred.For the purposes of the Uniform Voidable Transactions Act:
(1) a transfer is made:
(i) with respect to an asset that is real property other than a fixture, but including the interest of a seller or purchaser under a contract for the sale of the asset, when the transfer is so far perfected that a good-faith purchaser of the asset from the debtor against which applicable law permits the transfer to be perfected cannot acquire an interest in the asset that is superior to the interest of the transferee; and
(ii) with respect to an asset that is not real property or that is a fixture, when the transfer is so far perfected that a creditor on a simple contract cannot acquire a judicial lien otherwise than under the Uniform Voidable Transactions Act that is superior to the interest of the transferee;
(2) if applicable law permits the transfer to be perfected as provided in subdivision (1) of this section and the transfer is not so perfected before the commencement of an action for relief under the act, the transfer is deemed made immediately before the commencement of the action;
(3) if applicable law does not permit the transfer to be perfected as provided in subdivision (1) of this section, the transfer is made when it becomes effective between the debtor and the transferee;
(4) a transfer is not made until the debtor has acquired rights in the asset transferred; and
(5) an obligation is incurred:
(i) if oral, when it becomes effective between the parties; or
(ii) if evidenced by a record, when the record signed by the obligor is delivered to or for the benefit of the obligee.
36-808.
Remedies of creditor.(a) In an action for relief against a transfer or obligation under the Uniform Voidable Transactions Act, a creditor, subject to the limitations in section 36-809, may obtain:
(1) avoidance of the transfer or obligation to the extent necessary to satisfy the creditor's claim;
(2) an attachment or other provisional remedy against the asset transferred or other property of the transferee if available under applicable law; and
(3) subject to applicable principles of equity and in accordance with applicable rules of civil procedure:
(i) an injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;
(ii) appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or
(iii) any other relief the circumstances may require.
(b) If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.
Annotations
1. Prior law (Uniform Fraudulent Transfer Act, sections 36-701 to 36-712)
Pursuant to subdivision (a)(1) of section 36-708, the Uniform Fraudulent Transfer Act requires some nexus between the claim upon which an individual's creditor status depends and the purpose for which that individual seeks to set aside a fraudulent transfer. Reed v. Reed, 275 Neb. 418, 747 N.W.2d 18 (2008).
36-809.
Defenses, liability, and protection of transferee or obligee.(a) A transfer or obligation is not voidable under subdivision (a)(1) of section 36-805 against a person that took in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee.
(b) To the extent a transfer is avoidable in an action by a creditor under subdivision (a)(1) of section 36-808, the following rules apply:
(1) Except as otherwise provided in this section, the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (c) of this section, or the amount necessary to satisfy the creditor's claim, whichever is less. The judgment may be entered against:
(i) the first transferee of the asset or the person for whose benefit the transfer was made; or
(ii) an immediate or mediate transferee of the first transferee, other than:
(A) a good-faith transferee that took for value; or
(B) an immediate or mediate good-faith transferee of a person described in subdivision (b)(1)(ii)(A) of this section.
(2) Recovery pursuant to subdivision (a)(1) or subsection (b) of section 36-808 of or from the asset transferred or its proceeds, by levy or otherwise, is available only against a person described in subdivision (b)(1)(i) or (ii) of this section.
(c) If the judgment under subsection (b) of this section is based upon the value of the asset transferred, the judgment must be for an amount equal to the value of the asset at the time of the transfer, subject to adjustment as the equities may require.
(d) Notwithstanding voidability of a transfer or an obligation under the Uniform Voidable Transactions Act, a good faith transferee or obligee is entitled, to the extent of the value given the debtor for the transfer or obligation, to:
(1) a lien on or a right to retain an interest in the asset transferred;
(2) enforcement of an obligation incurred; or
(3) a reduction in the amount of the liability on the judgment.
(e) A transfer is not voidable under subdivision (a)(2) of section 36-805 or section 36-806 if the transfer results from:
(1) termination of a lease upon default by the debtor when the termination is pursuant to the lease and applicable law; or
(2) enforcement of a security interest in compliance with article 9, Uniform Commercial Code, other than acceptance of collateral in full or partial satisfaction of the obligation it secures.
(f) A transfer is not voidable under subsection (b) of section 36-806:
(1) to the extent the insider gave new value to or for the benefit of the debtor after the transfer was made, except to the extent the new value was secured by a valid lien;
(2) if made in the ordinary course of business or financial affairs of the debtor and the insider; or
(3) if made pursuant to a good-faith effort to rehabilitate the debtor and the transfer secured present value given for that purpose as well as an antecedent debt of the debtor.
(g) The following rules determine the burden of proving matters referred to in this section:
(1) A party that seeks to invoke subsection (a), (d), (e), or (f) of this section has the burden of proving the applicability of that subsection.
(2) Except as otherwise provided in subdivisions (g)(3) and (4) of this section, the creditor has the burden of proving each applicable element of subsection (b) or (c) of this section.
(3) The transferee has the burden of proving the applicability to the transferee of subdivision (b)(1)(ii)(A) or (B) of this section.
(4) A party that seeks adjustment under subsection (c) of this section has the burden of proving the adjustment.
(h) The standard of proof required to establish matters referred to in this section is preponderance of the evidence.
Annotations
1. Prior law (Uniform Fraudulent Transfer Act, sections 36-701 to 36-712)
In all actions brought by creditors to subject property which it is claimed was fraudulently transferred, the person to whom the property has been transferred is a necessary party. Reed v. Reed, 277 Neb. 391, 763 N.W.2d 686 (2009).
Good faith encompasses an absence of or freedom from intent to defraud. Gifford-Hill & Co. v. Stoller, 221 Neb. 757, 380 N.W.2d 625 (1986).
36-810.
Extinguishment of claim for relief.A claim for relief with respect to a transfer or obligation under the Uniform Voidable Transactions Act is extinguished unless action is brought:
(1) under subdivision (a)(1) of section 36-805, not later than four years after the transfer was made or the obligation was incurred or, if later, not later than one year after the transfer or obligation was or could reasonably have been discovered by the claimant;
(2) under subdivision (a)(2) of section 36-805 or subsection (a) of section 36-806, not later than four years after the transfer was made or the obligation was incurred; or
(3) under subsection (b) of section 36-806, not later than one year after the transfer was made.
36-811.
Governing law.(a) In this section, the following rules determine a debtor's location:
(1) A debtor who is an individual is located at the individual's principal residence.
(2) A debtor that is an organization and has only one place of business is located at its place of business.
(3) A debtor that is an organization and has more than one place of business is located at its chief executive office.
(b) A claim for relief in the nature of a claim for relief under the Uniform Voidable Transactions Act is governed by the local law of the jurisdiction in which the debtor is located when the transfer is made or the obligation is incurred.
36-812.
Application to series organization.(a) In this section:
(1) Protected series means an arrangement, however denominated, created by a series organization that, pursuant to the law under which the series organization is organized, has the characteristics set forth in subdivision (2) of this subsection.
(2) Series organization means an organization that, pursuant to the law under which it is organized, has the following characteristics:
(i) The organic record of the organization provides for creation by the organization of one or more protected series, however denominated, with respect to specified property of the organization, and for records to be maintained for each protected series that identify the property of or associated with the protected series;
(ii) Debt incurred or existing with respect to the activities of, or property of or associated with, a particular protected series is enforceable against the property of or associated with the protected series only, and not against the property of or associated with the organization or other protected series of the organization; and
(iii) Debt incurred or existing with respect to the activities or property of the organization is enforceable against the property of the organization only, and not against the property of or associated with a protected series of the organization.
(b) A series organization and each protected series of the organization is a separate person for purposes of the Uniform Voidable Transactions Act, even if for other purposes a protected series is not a person separate from the organization or other protected series of the organization.
36-813.
Supplementary provisions.Unless displaced by the provisions of the Uniform Voidable Transactions Act, the principles of law and equity, including the law merchant and the law relating to principal and agent, estoppel, laches, fraud, misrepresentation, duress, coercion, mistake, insolvency, or other validating or invalidating cause, supplement its provisions.
36-814.
Uniformity of application and construction.The Uniform Voidable Transactions Act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of the act among states enacting it.
36-815.
Relation to Electronic Signatures in Global and National Commerce Act.The Uniform Voidable Transactions Act modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., as the act existed on September 1, 2019, but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. 7003(b).