29 Neb. 791 | Neb. | 1890
This suit was instituted in the district court of Cass county, against George R. Conna, to cancel — as being a foi’gery — a deed placed upon the records of said county, purporting to have been executed by one Elizabeth Stafford to said George R. Conna, covering 106f acres of the south half of section 8, township 10, range 11, in said county. The petition of the plaintiff alleges:
“1. That on the 9th day of February, 1886, and immediately prior thereto, Lizzie M. Safford, niece and heir of the late John 'Whitelock, was the owner in fee of the following described premises, viz.: all that certain piece of land commencing ata point on section line 106-| rods west of the southeast corner of section 8, township 10 north, of range 11 east, of the sixth principal meridian, and running thence west along said section line 106|- rods, thence north 160 rods to half section line of said section 8, from thence east 106f- rods along said half section line, and from thence 160 rods to place of beginning, being 106f acres, more or less, and a part of said section 8, in Cass county, Nebraska.
“ 2. Plaintiff further complaining avers that on the 28th day of October, 1887, the said Lizzie M. Safford, and her husband, Hiram S. Safford, by good and sufficient deed and for a valuable consideration, conveyed to her as a title in fee
“ 3. And plaintiff further avers and complains that on March 5, 1886, at 11:30 A. M., the said George R. Conna filed in the office of the county clerk of Cass county, Nebraska, for record, a pretended deed to the land herein described, purporting to run from Elizabeth Stafford, an unmarried woman, and a resident of Galveston, Texas; said deed purports to have been made in Galveston, in the county of Galveston, Texas, on the 9th day of February, A. D. 1886, and to be acknowledged before one G. "W. Bromide, notary public of said county, and to be witnessed by one James Rider and one J. P. Cooper. Now plaintiff alleges that said pretended deed is a fraudulent conveyance; that there is no such person as Elizabeth Stafford, who has now or ever has had an interest in said described land; that there is no such notary as G. W. Bromide, or witnesses James Rider and J. P. Cooper, in Galveston, Texas, now, or at the time of the execution of said deed as therein indicated; wherefore plaintiff alleges that said deed is a fraud, and that the record of the same makes an illegal and fraudulent incumbrance upon plaintiff’s title to said property, the name of Elizabeth Stafford, appearing to said deed as grantor, being a forgery.
“4. Now, plaintiff'further avers that Lizzie M. Safford, the heir of John 'Whitelock, deceased, and a married woman, was, at the time of JohnWhitelock’s death and at the date of the fraudulent conveyance herein described, a married woman; her home being in Oakland, Alameda county, California; that she did not sign the pretended deed to George R. Conna, defendant; that she had no knowledge of its existence for a long time after its record in Cass county.”
Afterwards Elizabeth M. Safford and Hiram S. Safford were permitted to intervene and file an answer and cross-bill, alleging therein :
“1. That these defendants are the grantors in the deed made, executed, and delivered to plaintiff October 28, 1887, purporting to convey to said plaintiff the lands in said petition described, and by which deed she alleges title thereto, and that said deed was so delivered to plaintiff for the money consideration therein named, of ten dollars.
“2. Defendants allege that in or about the month of June, 1872, they moved their place of residence from Washington, D. C., to the territory of Nevada; from there they moved to Alameda county, in the state of California, about the month of November, A. D. 1879, at which latter place defendants have ever since, and do now there reside, their postoffice during all of said time being the city of Oakland, in said county and state.
“3. That ever since these defendants so moved their residence from Washington, D. C., their exact whereabouts has at all times been known to their relations who were living in the eastern states, but were especially and particularly known by the plaintiff herein and her father and mother, John and Rebecca Delorac, and that said plaintiff and her mother are now, and for a long time past have been, residents of the city of Cincinnati, in the state of Ohio.
“4. That the mother of this defendant, Elizabeth M. Safford, and the mother of plaintiff, and one John White-lock, now deceased, and one Elizabeth Maltas, were brother and sisters.
“5. That some time in the month of September, 1883, the said John Whitelock, being then a resident of Hamilton county, in the state of Ohio, died, leaving an estate of which said plaintiff’s mother, Rebecca Delorac, Elizabeth
“ 6. That said Rebecca Delorac and Elizabeth Maltas had the probate court of Hamilton county, Ohio, probate and administer upon said estate, real and personal, and instituted a suit in the district court of Cass county, Nebraska, wherein and whereby they caused the lands belonging to said estate and all of which were situated in said Cass county, Nebraska, to be partitioned and divided between said Rebecca Delorac, Elizabeth Maltas, and this defendant, Elizabeth M. Safford; there being set apart to each 106f acres of land.
“7. That neither of these defendants have ever been informed by any of the parties or heirs of any person, directly or indirectly, of the death of said John Whitelock, of the probating of his estate, or that the defendant herein, Elizabeth M. Safford, was an heir or legatee of any portion of said estate, but that each of them have, at all times, been in total ignorance of each and all facts hereinbefore alleged and set forth in paragraphs 5 and 6.
“8. That on or about October 9, 1889, the plaintiff herein came to the home of these defendants in Alameda county, California, for the purpose, ostensibly, of making a friendly visit, but, in truth and in fact, for the sole purpose of cheating and defrauding said defendants out of their interest in the estate of John Whitelock, deceased, (she being well informed of the value thereof, and well knowing that said defendants were wholly ignorant of the death of said John Whitelock, and the existence of any estate or part thereof descending to them); and for the purpose aforesaid, of cheating and defrauding them out of théir interest of said estate, did willfully, falsely, and fraud
“ 9. That these defendants, having no other information, and fully believing and relying upon the false, fraudulent, and untrue statements so made by plaintiff, and having their sympathy aroused and excited by reason thereof, did make, execute, and deliver said deed for the consideration therein named, conveying said lands to plaintiff.
“10. That at the time said deed was produced by plaintiff for the signature of these defendants, they for the first time learned that their interest was in an undivided one-third of a half section of land, and upon inquiry of plaintiff by
“11. That defendants further allege that in the partition suit hereinbefore alleged and mentioned, and in which suit the defendant therein designated, through mistake and inadvertence by the name of Elizabeth Stafford, and the decree of partition therein, vest the title of said defendant’s interests in said lands by that name.
“ 12. That these defendants further allege that the pretended deed set forth and described in plaintiff’s petition, purporting to convey said land therein described from one Elizabeth Stafford to one George R. Conna, is a cloud, on the title of these defendants, and that no title or interest was ever conveyed by said deed, which was forged and placed on record by some person or persons unknown to these defendants, and for the purpose of defrauding them of the title and interest they have in and to said land.
“13. These defendants now bring into this court the money consideration of said deed from them to plaintiff, to-wit, ten dollars, and tender the same to her and leave it subject to the order of said court.
“ Wherefore defendants pray that the deeds purporting to be from Elizabeth Stafford to George R. Conna be found false, fraudulent, and forged, and of no force or effect in law, and that it be set aside and the record thereof
The plaintiff replied to the answer and cross-bill of the defendants, denying all allegations of fraud, and alleging full and adequate consideration for the deed.
The district court found that the pretended deed to George R. Conna from Elizabeth ,M. Safford is a forgery, also found the issues against the intervening defendants, and quieted the title to the land in the plaintiff. The Saffords appeal.
That the deed to Conna was forged is undisputed. The only question we are called to pass upon is this: Did the plaintiff obtain the deed through fraud and deceit? The undisputed testimony shows that one John Whitelock died September, 1883, in Cincinnati, Hamilton county, Ohio; that at the time of his death he had personal property of the value of $3,600 and also owned a half section of land near Weeping Water, Nebraska; that the plaintiff’s mother, Rebecca Delorac, the defendant Elizabeth M. Safford, and one Elizabeth Maltas were his sole and only heirs, each being entitled to one-third of the estate. The estate was probated in Hamilton county, Ohio, the father of the plaintiff being appointed administrator. After the payment of all debts and expenses of administration, the probate court made an
Hiram S. Safford, one of the intervening defendants, testifies that John Whitelock was his wife’s uncle; that early in October, 1887, the plaintiff visited the defendants at their home in Oakland, California, for the purpose of purchasing Mrs. Safford’s interest in her uncle’s estate; that at that time, the plaintiff represented that Whitelock had died in September, 1886, and had left an estate to be divided between her mother, Rebecca Delorac, her aunt, Elizabeth Maltas, and my wife, Elizabeth M. Safford; that there was between six and seven hundred dollars coming to my wife, and that there was also real estate amounting to about one hundred acres, which I first understood to be the entire amount of real estate, and that all this property was
The witness further testifies in answer to questions as follows:
Q,. State if you and your wife are the parties who deeded the land in controversy in this action to Mary Delorac, the plaintiff herein.
A. Yes, sir.
Q. What was the consideration for that deed?
A. Ten dollars was expressed in the deed, and the further consideration of the services of Mary Delorac in taking care of John Whitelock during his last sickness and before.
Q. State whether or not Mary Delorac told you who took care of John Whitelock prior to his death and whether she told you that the services therefor had ever been paid to any one out of his estate.
A. She said she had almost the entire charge of him for years, and did not state that any one had been paid for the-services.
Q,. Did you know at the timq of making the deed to Mary Delorac that any one claimed a bill for services ren
A. No, sir.
Q,. What, if anything, did Mary Delorac say as to" the (trouble, annoyance, and expense John Whitelock had been to her personally?
A. She said he had been the source of considerable annoyance and trouble to her; being somewhat dissipated .and she having more control over him, took particular charge of him most of the time.
Q. State whether or not Mary Delorac told you what Interest Elizabeth Maltas and her husband had in the lands of John Whitelock.
A. She said her mother had given them a few acres of the land to keep them quiet.
Q,. Did Mary Delorac tell you while at your place in Oakland, in 1887, where Elizabeth Maltas and her husband were then living?
A. Yes, sir; she said they lived in Chicago, Illinois.
Q,. What knowledge, if any, did you have of the value, character, or location of the lands in dispute at the time you executed the deed therefor, except what had been told you by Mary Delorac?
A. None whatever.
Q. State whether or not you believed, relied, and acted upon the statements made by Mary Delorac to you in regard to the land and her care of John Whitelock?
A. Yes, sir.
Q,. State whether or not the representations as made by Mary Delorac and your belief in them affected or controlled your actions in disposing of said lands, and, if so, how.
A. It did; if we had known the true facts of the case we would not have deeded the property to her.
Q. Did you receive more than the ten dollars consideration expressed in the deed, and, if so, how much?
Q. Was any part of the five hundred dollars paid as consideration for the land?
A. The personal property and real estate were linked together in the payment of this five hundred dollars. Personal property amounted to about seven hundred dollars in money.
The testimony of Elizabeth M. Safford is substantially the same as that of her husband. It further appears from the testimony of both of the Saffords and J. L. Hanna, postmaster of Oakland, California, that the plaintiff on the 26th day of October, 1887, went to the postoffice in Oakland and signed Mrs. Safford’s name to a written order to forward all of her mail to Cincinnati, Ohio, in care of Alva Parker, a personal friend of the plaintiff. On the same day a letter was received at the postoffice at Oakland addressed to Mrs. Safford, and written by one William H. Pugh, an attorney at Cincinnati, informing her that she was interested in the estate of John Whitelock, deceased, and that between six and seven hundred dollars were due her from the personal estate, which letter Mrs. Safford failed to receive until long after the making of the deed, because it was forwarded by the postmaster of Oakland to Cincinnati in pursuance of the written request of the plaintiff.
William H. Pugh testifies that he is an attorney at law, practicing in Cincinnati, that he represented the interests of Elizabeth Maltas in the settlement of the estate of John Whitelock, deceased; that the plaintiff filed no claim against said estate; that M. T. Delorac, father of the plaintiff, was the administrator of the estate; that personal property to the amount of $3,600 came into the hands of the administrator; that on March 6, 1885, M. T. Delorac,
Mary Delorac, the plaintiff, testifies that she purchased the land October 28, 1887; that the consideration was ten dollars, the amount mentioned in the deed, and the mortification and humiliation she had to contend with by the presence of Whitelock at her father’s house during nearly all her life; that he was ragged, dirty, and filthy, by reason of habits of intoxication, often coming into the parlor and other parts of the house when plaintiff had company, once exposing his person; he entered plaintiff’s church in a beastly condition,, when she was obliged to coax him home and remain with him; annoyed her by his intoxication while she was attending school; that Whitelock made his home with plaintiff’s parents for thirty-five years prior to his death, and that plaintiff cared for him; that he was frequently so drunk that he was almost helpless; ofttimes in the dead of night, when brought home by police; she would get up and care for him, and that the care of her uncle was a great strain on her nervous system.
The plaintiff, being interrogated as to the conversation that took place between her and the defendants at their home in Oakland, touching their interest in John White-lock’s estate prior to their making of the deed to- the plaintiff, answered: “The next day, Monday, after I arrived at their home, my cousin and myself were setting in the room I occupied as a bedroom. I then told her of my unclels death, that he left money and land in Cass county, Nebraska, and that she was one of the heirs; that her portion of the estate was six or seven hundred dollars, the exact
The plaintiff further testifies that she had never seen the land in Cass county and did not know its value, but had a vague remembrance that it was appraised at $10 per aci’e.
Again, the plaintiff informs the defendant that Mrs. Maltas, one of the heirs, was living in Chicago, while, at the time, she was residing in Cass county on the land in dispute, which plaintiff well knew. We do not believe that the plaintiff was entirely ignorant of the value of the land. She had been living for years with her mother, who owned one-third of the land, which the mother had been advised was worth $25 per acre. In all probability, it was the subject of frequent conversation in the family. It is improbable that the plaintiff crossed the continent with the sole object to purchase the land from the defendants without knowing something near its value. The testimony convinces us that the plaintiff represented that the land was of little value. Her statement in that regard was a misrepresentation of a material fact, for which she is responsible, whether made willfully or not. The defendants had a right to rely upon her positive statements, as they had never seen the land, and were entirely ignorant as to its situation or value. The defendants, instead of conveying property which they were led by the plaintiff to believe was worth but little, parted with the title to real estate worth over $2,500.
The rule frequently followed by this court, to the effect that the findings of the district court will not be molested when there is sufficient evidence to sustain it, has not the same application in a case tried upon depositions as where the witnesses appear and testify in open court. Where the witnesses are examined before the court, such court, by seeing and hearing the witnesses,, has a decided advantage over a reviewing court in weighing their testimony. The entire testimony in this case, relating to the representations of the plaintiff, was taken by deposition.
The decree of the district court, so far as it quieted the title to the land in the plaintiff, is reversed, and a decree will be entered in this court canceling the deed obtained by the plaintiff from the defendants, and quieting the title of the defendant, Elizabeth M. Safford. The decree of the court below canceling the deed purporting to have been given by Elizabeth M. Safford to George R. Conna is affirmed.
Judgment accordingly.