86 Neb. 740 | Neb. | 1910
This action was brought to foreclose a mortgage given to secure a note for $3,500. Defendants admit the excution of the note and mortgage, but in a cross-petition which in substance alleges that the note and mortgage were fraudulently obtained, and there was no consideration for their execution and delivery, pray for their can
The evidence shows that the defendants lived in Lincoln; that Bertha Watkins was engaged in keeping a rooming and boarding house, and that Frank Watkins, her husband, was engaged in the grocery business, and had formerly been a stage carpenter; that he had no knowledge of the value of the land in Howard county, and no experience as to the quality or productivity of soil; that Mrs. Watkins was desirous of disposing of the rooming house, and that about April 1, 1905, one Loman was employed by her as an agent or broker for the purpose of finding a purchaser for the property. Soon afterwards Loman, who was an old acquaintance and friend of the plaintiff Dwinell, informed Mrs. Watkins that Dwinell had 240 acres of land in Howard county which he desired to dispose of, and which he might exchange for the furniture. In company with Loman, Mr. Watkins went to Grand Island by rail, and from there was driven out to see the land, upon which the plaintiff with his family resided. They arrived at the farm about noon on Sunday, and, after taking dinner with the family, Watkins spent about an hour in looking over the land with Dwinell and Loman. This was about the middle of April, and no crops were then growing. They returned to Lincoln the same day. Watkins testifies that he made no inquiries of any one as to the value or quality of the land except Dwinell and Loman; that he told them he knew nothing about the quality or value of land himself, and that he should rely upon what they told him; that Dwinell told him the land was worth $6,500, said it was all good tillable land; that there were only 85 acres under cultivation, but it could all be cultivated; and that Loman also told him the land was worth $6,500. He testifies that on the way home he suggested to Loman that they stop in St. Paul and make some inquiries with regard to the land, but that Loman told him that he was well acquainted with the land, that it was worth the money, and
The plaintiff concedes in his brief that the evidence would justify the court in finding the land was worth in cash from $10 to $12.50 an acre at the time of the trade, and that the furniture was worth $2,800 to $3,000, and
The law is so well settled in this state upon every point involved that the only question here is one of fact. Wiruth v. Lashmett, 82 Neb. 375; Olcott v. Bolton, 50 Neb. 779; Foley v. Holtry, 43 Neb. 133; Perry v. Rogers, 62 Neb. 898. See, also, 20 Cyc. p. 54, subd. 3; p. 60, subd. 6.
We have considered the evidence, and have arrived at the same conclusion as to agency, concealment, and representations as did the trial court. The land and the furniture were about of the same value at the time they were exchanged, and the defendants should be relieved from the fraud to the extent of their obligation evidenced by the note and mortgage. The findings and decree are just, and are
Affirmed.