23 Neb. 271 | Neb. | 1888
The plaintiff alleges in her petition that she resides in Denver, Colorado, and has been absent from Lincoln since 1874; that she was the owner of lot two, in block thirty-one, in the city of Lincoln, which lot was then worth between six and eight thousand dollars; that for the purpose-of inducing her to sell said lot for a wholly inadequate-consideration, Dinges called on her at her home in Denver, with his attorney, and concealed from her the true value-, of the lot, and falsely and fraudulently represented that the value of the lot, exclusive of the house, was not more-than two or three hundred dollars; that her title had been extinguished by reason of a tax deed, but in order to clear up a flaw he wished her signature to a deed as a simple-formality ; that the attorney of Dinges, at his instigation
The defendant filed a general demurrer to the petition, which was overruled, to which the defendant excepted and now assigns the overruling of the same for error.
The demurrer was properly overruled. Where parties stand on an equal footing, expressions of opinion as to
Upon the overruling of the demurrer the defendant filed an answei, in which he admits the execution of the deed; second, alleges that the lot had no market value; third, that at the time of said purchase said lot was in the adverse possession of one Herman Koenig, who claimed to be the owner of the same by reason of a tax title issued in 1875, and adverse possession thereunder for more than ten years.
The plaintiff filed a reply wdiieh it is unnecessary to notice.
The testimony tends to show that early in February, 1887, Herman Koenig was in possession of the lot in question under a tax deed. The testimony, however, fails to show that Mr. Koenig had been in possession a sufficient length of time to give him title by adverse possession. In fact it shows that he had not had such possession for the requisite time. The defendant applied to Mr. Koenig to purchase the lot, and was informed bjr him as to the state of his title, and it was verbally agreed that he would sell his interest to the defendant for the sum of two thousand dollars, it being understood that the legal title was in the plaintiff. The testimony shows that the lot at this time was -worth from twenty-five hundred to six thousand dol
The attorney testifies on that point: “ I first introduced ■myself to the plaintiff, Mrs. Morgan, as an attorney from the office of Patterson & Thomas, and introduced Mr. Dinges, the defendant, to her, and told her that we wanted to have a talk with her about a certain lot in the city of Lincoln of which she vjas at one time the ovmer. She said that she had been the owner of the lot about which we were speaking, and I then told her that I had been informed that she failed to pay the taxes on that lot for ,a long space of time, I think I said for ten or fifteen years, and I also told her that, if that was the case, in all human probabilities somebody had the title to that lot through a tax sale. She told me that it was true, that she had not paid the taxes on the lot for a long time, but said ■that she had been unable to do so on account of sickness
He further testified :
“ Q,. Did you at any time or in any manner inform or threaten the plaintiff that if she did not sell her interest in this lot that you could arrest her and take her to Lincoln, and make her clear up this tax title, and that it would cost her more than the property was worth ?■
“ A. No, I did not. I told Mrs. Morgan, however, that the owner of the tax title could bring a suit against her to compel her, or rather not to compel her, but to clear a cloud from his title by reason of the fact that the record showed her to be the owner in fee simple. And I did say to her at that time that she would be put to considerable cost and expense to defend that suit, in case the holder of the deed should bring such a suit. I would like to continue that answer, but I never in any way or manner said or intimated to Mrs. Morgan that it would be possible, under any circumstances or conditions, to arrest her or to bring any criminal charge against her whatever.
“ Q. Was anything said by either you or the defendant, at any conversation with the plaintiff, in regard to her arrest, or of the power of the defendant to compel her to go to Lincoln, Neb.?’
He also testified as follows:
“ Q. Did either you or the defendant state to Mrs. Morgan what in your opinion the lot was worth at this time ?
“ A. No, I think not. Mrs. Morgan asked us what we thought the property was worth, and not knowing anything about it myself I could not tell; but Mr. Dinges, the defendant, told her that some time ago, I think he said about two years and a half ago, the property had been sold for eight or nine hundred dollars, I am not sure which now.
“ Q. Did either you or the defendant inform or advise the plaintiff that her interest in the property was of no value whatever?
A. Not in that way. I did tell Mrs. Morgan that if no taxes had been paid on the place by her for the past fifteen years, that in all human probability she had no more title to the premises than I have.”
The testimony also' shows that the plaintiff was unaccustomed to the transaction of business, and knew nothing ■of the real value of this property. She states, and it is apparent from the record, that she had been unable, from poverty, to pay the taxes on the lot in question ; that her children had been sick with the measles, and she lived at least one mile from the business portion of the city of Denver and from an attorney’s office; that her children were too young to leave alone, and that her husband was absent during the day in the employ of the railroad company, and personally knew nothing of the value of the lot. The plaintiff seems to have supposed that the attorney who appeared with the defendant was a member of the - law firm ■of Patterson & Thomas, and claims to have had great confidence in his statements. However this may be, the de
In that case the defendant owned a farm near the city ofOwosso; the plaintiff resided near said farm, and was well acquainted with its value. Bush was a resident of Pennsylvania. In May, 1868, four persons had written to Bush to negotiate for the purchase of the farm, but nothing had been done to close with them. Early in June of that year Swimm went to see Bush, and when asked concerning the value of the land, said it was not worth four thousand dollai’s nor three thousand dollars, and that he had not expected to' pay more than twenty-eight hundred dollars, but that he would give three thousand, as his wife was born on it and had an affection for it; an offer of three thousand for it had been made in one of the letters written by one Martin to Bush. Swimm purchased the farm for three thousand dollars, paying four hundred dollars down, with a provision for adequate security upon the making of the deed. The testimony showed the land at that time to be worth four thousand dollars, as Swimm well knew. The court set the contract aside, as having been obtained by fraud, and taxed all the costs to Swimm. The court say, p. 10: “ It is just as clear that Swimm knew this, and gave him the answers and made the representations in order to induce him to believe he was getting the outside value of the land, and that it would not be safe to lose a good offer. The representations were of the greatest materiality, and" referred to the matters'on which any sensible;
In Turner v. Harvey, Jacob’s R., 178, Lord Eldon adverts to the general principle, “ that parties dealing for an estate have a right to put each other at arms-length; and that if the purchaser knows that there is a mine upon the estate, and the vendor makes no inquiry, the former is not bound to give him information thereof. ” He says, however, “Very little is sufficient to affect the application of that principle; if a word, if a single word be dropped which tends to mislead the vendor, that principle will not be allowed to operate.”
On commenting on this rule in Livingstone v. Peru Iron Co., 2 Paige, 393, Chancellor Walworth says: “Certainly if the purchaser does any act, or makes any declaration, with the intention of misleading the seller and preventing him from ascertaining the real situation of the property, and at the same time conceals from him a fact which he knows to be material, he is guilty of fraudulent deception.”
To the same effect are Haygarth v. Wearing, L. R. 12; Eq., 320, 328. Rawlins v. Wickham, 3 De G. & J., 304; S. C., 1 Giff., 355. Martin v. Jordan, 60 Me., 531. Coon v. Atwell, 46 N. H., 510. Simar v. Canaday, 53 N. Y., 298. Van Epps v. Harrison, 5 Hill, 63. Reid v. Flippen, 47 Ga., 273. Morehead v. Eades, 3 Bush, 121. Sieveking v. Litzler, 31 Ind., 14. Harvey v. Smith, 17 Id., 272. Davis v. Jackson, 22 Id., 233. McFadden v. Robinson, 35 Id., 24. Allen v. Millison, 72 Ill., 201. Neil v. Cummings, 75 Id., 170. Fairbault v. Sater, 13 Minn., 210. Gifford v. Carvill, 29 Cal., 589. Cruess v. Fessler, 39 Id., 336.
The defendant, while claiming to the plaintiff that she
Judgment affirmed.