Clark v. Clark

276 	275 Nebraska reports
dale d. clark , appellee , v .
larry l. clark eT al ., appellanTs .
746 N.W.2d 132
Filed March 21, 2008. 	No. s-06-1254.
1. Statutes: Appeal and Error. statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
2. Appeal and Error. an appellate court will not consider an issue on appeal that
was not passed upon by the trial court.
appeal 	from 	the 	District 	Court 	for 	stanton 	County,
roBerT B. ensz, Judge, on appeal thereto from the County Court
for stanton County, phIlIp r. rIley, Judge. Judgment of District
Court affirmed.
Charles L. Caskey for appellants.
Jeffrey L. Hrouda for appellee.
heavIcan, 	C.J., 	W rIghT, 	connolly, 	gerrard, 	sTephan,
M ccorMack, and MIller -lerMan, JJ.
M ccorMack, J.
NatUre oF Case
In 1993, rolland L. Clark and Libbie I. Clark, husband and
wife, entered into a land sale contract with their son, Larry L.
Clark; Larry’s wife, reta M. Clark; and Larry’s son, James D.
Clark (collectively the appellants). the agreement provided
that upon the death of rolland and Libbie, one-half of the bal-
ance remaining on the agreement would be payable to Dale D.
Clark, another son of rolland and Libbie, and one-half would
be payable to the appellants as joint tenants with the right of
survivorship. this case involves a dispute between Dale and
the appellants regarding one-half of the balance remaining on
the agreement at the time of Libbie’s death. the principal issue
is whether one-half of the balance remaining became Dale’s as
a nonprobate transfer or whether it passed to Larry under the
terms of Libbie’s will.
baCkGroUND
on september 27, 1993, rolland and Libbie entered into
an agreement with the appellants wherein rolland and Libbie
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

agreed to sell approximately 140 acres of property to the appel-
lants for $56,000. Under the terms of the agreement, the appel-
lants agreed to pay rolland and Libbie yearly installments of
$5,600 until the principal balance was paid in full. the contract
further provided:
In the event of the death of rolland L. Clark and Libbie
I. Clark, the payments due under this agreement shall be
paid one-half to Dale D. Clark and one-half to Larry L.
Clark and reta M. Clark, husband and wife, and James D.
Clark, as joint tenants with right of survivorship.
on september 27, the subject property was conveyed to the
appellants by a warranty deed executed by rolland and Libbie.
the deed, however, was held in escrow, along with the agree-
ment, until performance of the terms of the agreement by
the appellants.
rolland died in 1999, and Libbie died in 2000. Libbie, who
died testate, was survived by Dale, Larry, and another child,
audrey Wiegel. Under the terms of her will, Libbie devised her
estate to Larry. the will provided in relevant part:
I give and devise all of the rest, residue and remainder of
my estate to my son, Larry Clark, in recognition of all of
the help he has given to me during my lifetime. . . .
I have previously made very generous gifts to Dale
Clark and I have also helped audrey Wiegel. For this rea-
son, I have made no provision for them in this will.
the will also appointed Larry as personal representative of
Libbie’s estate.
at the time of Libbie’s death, the balance remaining under
the agreement was $16,900. the appellants, however, made no
further payments on the agreement. Nevertheless, the appel-
lants filed a warranty deed with the register of deeds in stanton
County on February 1, 2000.
thereafter, Dale brought the present action to recover one-
half of the balance remaining under the terms of the agreement,
$8,450, plus interest. Following a trial on the matter, the county
court for stanton County entered judgment against the appel-
lants in the amount of $11,349.19. on appeal, the district court
affirmed the decision of the county court. the appellants now
appeal the district court’s decision.
CLark v. CLark 	277
Cite as 275 Neb. 276

278 	275 Nebraska reports
assIGNMeNts oF error
the appellants assert, restated, that the district court erred
in affirming the county court’s decision. More specifically, the
appellants assert that the district court erred in affirming the
county court’s (1) finding that Dale is entitled to one-half of the
balance of the agreement as a nonprobate transfer, (2) failure to
allow the doctrine of merger, and (3) failure to find that Dale
should have filed a claim in the probate of Libbie’s estate.
staNDarD oF revIeW
[1] statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.1
aNaLYsIs
nonproBaTe T ransfer
the appellants first assert that the district court erred in
affirming the county court’s determination that Dale is entitled
to one-half of the balance remaining under the agreement as a
nonprobate transfer.
article 27 of the Nebraska probate Code governs nonprobate
transfers.2 section 30-2715 provides:
(a) a provision for a nonprobate transfer on death in a
. . . mortgage, promissory note, certificated or uncertifi-
cated security, . . . or other written instrument of a similar
nature is nontestamentary. this subsection includes a writ-
ten provision that:
(1) money or other benefits due to . . . a decedent
before death must be paid after the decedent’s death to a
person whom the decedent designates either in the instru-
ment or in a separate writing . . . .
Under the terms of the agreement in the present case,
rolland, Libbie, and the appellants contracted for the sale of
land, the balance of which was to be paid in annual installment
payments. In Mackiewicz v. J.J. & Associates,3 we addressed
the nature of the contracts for the sale of land in that case
1 In re Interest of Kevin K., 274 Neb. 678, 742 N.W.2d 767 (2007).
2 see Neb. rev. stat. §§ 30-2715 through 30-2746 (reissue 1995).
3 Mackiewicz v. J.J. & Associates, 245 Neb. 568, 514 N.W.2d 613 (1994).

and concluded that they were to be treated as mortgages. In
Mackiewicz, property was sold to a purchaser under separate,
recorded installment land contracts. according to the terms of
the contracts, the purchaser paid money down on the property
and agreed to pay the balances in three subsequent install-
ments. the deeds for the property were placed in escrow, and
under the terms of the land contracts, the warranty deeds were
to be delivered to the purchaser upon payment in full of the
purchase price.
We explained:
[I]t is “generally accepted that if an instrument executed by
parties is intended by them as security for a debt, whatever
may be its form or name, it is in equity a mortgage.” . . .
as with the terms used in describing a mortgage, this
court has repeatedly termed a purchaser’s interest under
an executory land contract as both a “security” and a
“lien” upon the land.4
the agreement between rolland, Libbie, and the appellants
is nearly identical in nature to the land contracts at issue in
Mackiewicz. according to the terms of the agreement, rolland
and Libbie agreed to sell land to the appellants. the appellants
in turn agreed to pay annual installments until the principal
balance was paid in full. the parties agreed that the principal
balance would draw interest and that an executed warranty deed
would be placed in escrow and delivered to the appellants upon
performance by the appellants of the agreement. In the event
of default by the appellants, the agreement provided that “the
entire debt hereby secured” would become immediately due
and payable and the agreement liable to foreclosure.
section 30-2715 applies to provisions in mortgages, security,
or other written instruments of a similar nature. as noted in
Mackiewicz, “because this court has uniformly recognized that
a seller in a land contract retains the title as security for the
unpaid purchase money and has an equitable lien on the land to
the extent of the debt, a seller has, for all intents and purposes,
a purchase-money mortgage.”5 accordingly, we conclude that
4 Id. at 574, 514 N.W.2d at 618-19 (citations omitted).
5 Id. at 579, 514 N.W.2d at 621.
CLark v. CLark 	279
Cite as 275 Neb. 276

280 	275 Nebraska reports
the transfer to Dale of one-half of the balance remaining under
the agreement was a nonprobate transfer within the meaning
of § 30-2715.
docTrIne of M erger
[2] the appellants next assert that the district court erred
in affirming the county court’s failure to allow the doctrine of
merger. the record reveals that the doctrine of merger was not
addressed by either the county court or the district court. an
appellate court will not consider an issue on appeal that was not
passed upon by the trial court.6 therefore, we do not address
this assignment of error.
fIlIng of claIM In proBaTe of lIBBIe ’ s esTaTe
Finally, the appellants assert that the county court erred in
failing to find that Dale should have filed a claim in the probate
of Libbie’s estate, and that the district court erred in affirming.
the transfer to Dale of one-half of the balance remaining under
the agreement in this case was a nonprobate transfer. as such,
it was not necessary for Dale to file a claim against Libbie’s
estate. We find this assignment of error to be without merit.
CoNCLUsIoN
For the reasons discussed above, we affirm the judgment of
the district court.
affIrMed .
6 Thorson v. Nebraska Dept. of Health & Human Servs., 274 Neb. 322, 740
N.W.2d 27 (2007).
sTaTe of neBraska , appellee , v .
T errence k. gorup , appellanT.
745 N.W.2d 912
Filed March 21, 2008. 	No. s-07-450.
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause. a trial court’s ruling on a motion to suppress, apart from determina-
tions of reasonable suspicion to conduct investigatory stops and probable cause