81 N.W. 36 | N.D. | 1899
Plaintiff seeks to have a deed to a quarter section of land in Pembina county, which she executed and delivered to the defendant Surerus, set aside on the ground of the fraud of the purchaser at the time the contract was made. The plaintiff acquired the land under the pre-emption laws, prior to 1885. At that date she returned to Canada, leaving the land in charge of her brother, John Heyrock, with the understanding that he should proceed to put the same in, a state of cultivation, pay the taxes, and hold the farm until the proceeds repaid him for his outlay. At that time there was but a small amount broken. The brother held the land until January, 1896, when it was purchased by the defendant Surerus at the plaintiffs home in Canada. It is alleged that defendant, to induce plaintiff to sell the land, falsely stated its value and its condition, and that John Heyrock had received enough out of the farm to repay him all of his outlay. The answer denies all fraud. There was a decree for plaintiff, and the defendants appeal. Defendant Geiger is a purchaser from Surerus. The case comes to this court for trial de novo on the testimony, and there is practically no question of law involved. Our conclusions from the testimony, which we have carefully considered, are' directly opposed to those of the trial court. ,
. Fraud will never be presumed. It must be shown by satisfactory evidence. This is elementary, and is specially true where a party seeks to avoid his own solemn and deliberate deed. Plaintiff fell far short of meeting these requirements. .She did not make out a prima facie case. We are not warranted in reviewing the testimony at any length, but will notice a few points. Plaintiff testifies: “1 had been dissatisfied with the sale, because my brother John had not got his pay out of it, and that was the only reason I bring this suit.” But had defendant Surerus deceived her on that point? She swears: “I told him that I did not want my brother to lose anything if I sold the land. He said he had made his pay out of the land; that the use of the land was worth more than that; and
Reversed.