96 Neb. 612 | Neb. | 1914
The petition in this case, filed May 18, 1911, seeks to subject certain property alleged to be the property of George W. E. Dorsey, to the payment of a judgment in favor of Mark M. Goad rendered on the 11th day of February, 1905, .in the district court for Dodge county, Nebraska, against said Dorsey. The basis of the action is
It is plaintiffs’ contention that, the mortgages to the Farmers & Merchants National Bank and Emeline Benton having been filed for record on the 6th day of May, 1893, and the Eochester Loan & Banking Company, the South Omaha National Bank, and others on the 10th day of May, 1893, having filed attachments on the mortgaged property, therefore the failure occurred at that time. September 25, 1893, the bank filed a petition to foreclose its mortgage, and Emeline Benton filed her cross-petition praying to foreclose upon her mortgage. A decree was taken April
The petition alleged the death of Mark M. Chad on the 4th day of January, 1911; the admission of his will to probate by the county court of Dodge county on the 30.th day of January, 1911; that the plaintiffs are executors appointed by the court on said 30th day of January, 1911, and that they bring the action as executors. The indebtedness of George W. E. Dorsey prior to the 14th day of October, 1893, to the decedent Coad is set up. This1 pro
The defendant Laura H. Dorsey in her answer describes, the real property which she owns, and alleges that she, by herself and her immediate devisor and grantors other than George W. E. Dorsey, has been in the actual, exclusive, continuous, unin rrupted, notorious, and peaceable possession, occupation and use of said property adverse to all the world for more than ten years before the commencement of this action; that she is the owner of 43 of the shares of-stock of the Farmers & Merck mts National Bank of Fremont, Nebraska; that she has been the owner of said stock for more than ten years prior to the commencement of this action; that as to all of said property, real' and personal, the alleged causes of action stated in the plaintiff’s petition did not accrue within four years next before the commencement of the action, nor within ten years before its commencement, and that said alleged causes of action are each and all barred by the statute of limitations of the state of Nebraska. The prayer attached to the defendants’ answer asks that her title in the premises shall be forever quieted.
The answer of Maria Louise Dorsey contains, first, a general denial, then a specific description of the property which she claims to own, and similar allegations to those contained in the answer above quoted. She also sets up that a large part of this property which she describes has been sold or contracted for sale to many persons who have made payments thereon. She prays that her title to the land shall be forever quieted.
The Farmers & Merchants National Bank alleges its organization as a bank, and pleads that the cause or causes of action did not accrue within four years, nor within ten years, next before the commencement of the action. The Fremont National Bank makes a similar answer. The defendant Jennie A. Gibson sets up the fact that the will of Emma E. Dorsey was duly probated, and that the defendant, Laura H. Dorsey thereafter became the wife of the
In their replies the plaintiffs allege that they “did not discover said fraud until within one year next before the beginning of this action.” This is given as an excuse for disregarding the statute of limitations both with respect to the four years and the ten years next before the commencement of this action. If the trial court was not fully satisfied of the truth of the excuse so made, it could readily find against the plaintiffs on that issue. The decree of the district court is in favor, of the defendants. The pertinent language of the decree is:
“And the court, being now fully advised herein, does find generally upon the issues joined in favor of all of the defendants and said administrators and heirs, and, as well, in favor of said Maria Louise Dorsey and Laura H. Dorsey, on their respective cross-petitions or counterclaims, wherein they seek to have their respective titles to the real property described in their respective answers quieted against the claims of the plaintiffs, and for injunction against the plaintiffs thereto. The court further finds that the said Maria Louise Dorsey and Laura H. Dorsey are entitled to decree, respectively, quieting their titles to their said respective real properties, and for injunction as by them respectively prayed in their respective cross-petitions or counterclaims; and that all of the defendants are entitled to decree dismissing the plaintiffs’ petition.”
The plaintiffs’ action was dismissed, and by an appeal plaintiffs have brought the case to this court.
Where husband and wife by their joint labor increase the extent and value of the wife’s property without taking anything from the creditors of the husband, such creditors have no right to complain. Both of the Mrs. Dorseys had property of their own.
The statutes provide that an action for relief on the ground of fraud must be commenced within four years after a discovery of the facts constituting the fraud, or of facts sufficient to put a person of ordinary intelligence and prudence on an inquiry, which, if pursued, would lead to such discovery. Parker v. Kuhn, 21 Neb. 413. In Parker v. Kuhn will be found a learned discussion on the application of the Nebraska statute of limitations in cases where fraud is charged. The learned Justice adopts, with approval, the language of Mr. Justice Clifford in Godden v. Kimmell, 99 U. S. 201, to the effect that courts of equity hesitate to enforce stale demands, and that, if relief be sought in such cases, plaintiff should set forth in his bill the reasons for the long delay in prosecuting an action.
A party seeking to avoid the bar of the statute on account of fraud must aver and show that he used due diligence to detect it, and, if he had the means of discovery
As was above stated, Mark M. Coad lived in tbe city of Fremont. He and George W. E. Dorsey were neighbors. It would seem that be -should have discovered tbe frauds charged more than four years before tbe commencement of tbe action, if there were any frauds. We find no sufficient reason for tbe delay in commencing tbe case. It is shown that tbe plaintiffs’ testator knew, or should have known, of the transfers of tbe property complained of, and be knew, or should have known, tbe facts pertaining to tbe allegations of fraud. And he knew, or should have known, those things more than four years before tbe commencement of this suit. On tbe pleadings and proofs tbe action is barred by tbe statute of limitations.
We are unable to say that the finding and judgment are wrong, and tbe judgment of tbe district court is therefore
Affirmed.