99 Neb. 64 | Neb. | 1915
Lead Opinion
June 16, 1885, William Overton died, testate, seised of certain lands in Sarpy county. He devised to the widow the land herein in controversy, during her natural lifetime, and provided that at her death it should descend to his son, William B. Overton, subject, however, to the payment of $200 each to his sons, John G-. Overton, Lewis G. Overton, North L. Overton, and to his daughter, Martha O. Sack. The will was duly filed and admitted to probate in 1885, and in December, 1887, the accounts of the executor were approved and he was duly discharged by the county court. The widow, Catherine Overton, died May 11, 1901. July 15, 1907, Lewis O. Overton filed a petition in the probate court alleging the nonpayment of the legacies,' and pro- . cured the appointment of an administrator with will annexed. September 3, 1910, the administrator filed his re
Prom the death of William Overton in 1885 until the death of his widow, Catherine Overton, May 11, 1901, the widow and her son William B. Overton occupied the premises, and from the death of the widow until August 11,1911, they were occupied by William B. Overton. On the last' named date William B. Overton executed a deed of conveyance of the real estate to defendant Edgar B. Kobler, and, on the same day, Kobler executed a deed to the defendant Sack. Soon thereafter William B. Overton died intestate. This action was brought primarily for the cancelation of these deeds.
The plaintiff Lewis C. Overton is a son of William, and. a brother of William B. Overton, and the other plaintiffs are also heirs of the. deceased William and William B. By their petition, plaintiffs allege that shortly after the death of Catherine Overton they entered into a mutual agreement with William B. Overton that, in consideration of their forbearance to prosecute the collection of the legacies due them under the will of William Overton, William B. Overton should not alienate or incumber the real estate, and should die intestate, to the end that his property should descend to the legatees, or to those entitled to the property by right of representation, they being the sole heirs at law of the said William B. Overton; that, relying upon this agreement, the legatees forbore the prosecution or collection of the several amounts due under the will; that August 11, 1911, the defendants Edgar R. Kobler and Charles W. Sack, conspiring together for the purpose of unlawfully securing the property of William B. Over-ton, by the exercise of deception, fraud and undue influence, procured the execution of the deed from William B.
Defendant Charles W. Sack, by answer, denied all allegations of fraud and duress; admitted the purchase of the 'land, and the chain of title by which he held; and alleged that through Edgar R. Kobler, his agent, he purchased the same for $4,000, its full merchantable value; denied that he had any knowledge, part or participation in any artifice, trick or fraud employed by Kobler; denied that he had any knowledge or information that William B. Overton was incompetent to transact business; alleged that in making the purchase he acted in good faith; denied
The findings of the trial court, so far as material here, are: That the legacies mentioned in the will of William Overton.were never paid; that in making the purchase the defendant Kohler acted as the agent of the defendant Charles W. Sack; that William B. Overton “was an old man, weak in body and mind, living the life of a recluse, and that said fact was well known to the defendants Kohler and Sack;” that by representing to Overton that he was about to be arrested on the charge of arson he was put in great fear, and while in a highly agitated state of mind and wholly disqualified to act rationally as to his property, and “probably insane,” he made the deed, and that Sack was fully cognizant of these facts, and that these representations were false; that following the execution of the deed, and on the same day, the defendant Kobler conveyed Over-ton, who then had at least $5,000 on his person, to a lonely spot in Douglas county, “where said William B. Overton by some person or persons, was murdered and robbed of his money.” The court makes the further finding that on August 11, 1911, defendant Kohler possessed himself of all the money of William B. Overton except $35; that the value of the land was $5,000; that the evidence did not sustain plaintiff’s claim of an oral agreement on the part of William B. Overton to die intestate. ’He decreed that the deeds he set aside as fraudulent; that the legacies men
Overton was an eccentric character, who had spent nearly all his life on this little farm. After the death of his mother, which occurred in 1901, he had lived alone in a small cabin, and, though surrounded by relatives, he seldom visited them, and they rarely called on him. The land lay adjoining the farm owned by the defendant Sack, who was a relative but did not enjoy his favor. The defendant Kobler, a young man, who was also related to Overton, and on friendly terms with him, discovered that the farm might be purchased. He went to Sack and told him it could be bought for $3,000. Sack at once agreed to take the property and to pay Kobler $300 commission for making the purchase. Kobler returned to Overton only to find that he had raised the price to $4,000. Finally a contract was closed at the larger figure, but some modification was made between Sack and Kobler as to the amount of Kohler’s commission. Sack went to his local banker, and, by executing a mortgage on the farm which he then owned, arranged with the banker to pay Overton the purchase price. Kobler and Overton went to the bank, Overton executed a deed of the property to Kobler, believing that Kobler was the real purchaser, and immediately thereafter Kobler deeded to Sack. The banker suggested to Overton that he take bank paper, but on Overton’s insistence that he would accept nothing but cash the money was paid over. Overton then went to the home of a cousin in Springfield. He put the currency in a small sack, which he wore around his neck, and the gold and silver
Immediately following the execution of the deeds and the payment of the money, Sack met the plaintiffs in the toAvn of Springfield, and told them of the transaction.- It is insisted by the plaintiffs that he misled them as to Over-ton’s Avhereabouts, but it is not contended that they made any objection to the sale or any claim to an interest in the property. Overton Avent freely about the streets of the little town during the afternoon, and the money Avas paid over by the banker in the regular course of business.
Having reached- the conclusion that at the time Over-ton executed the deed- he Avas of weak mentality and that the deed was obtained by fraud or imposition, practiced upon him by Kobler, it is unnecessary to discuss the testimony on Avhich the trial court based its finding. But it is not claimed that Sack had any part in the murder or robbery of Overton, and the decree of the trial court directing Kobler to pay $4,000 into court for the benefit of Sack, the amount he had paid for the land, is as conclusive as though he had made a special finding to that effect, that the trial judge believed that Sack was in no way connected with the felonies.
Sack not being in any way connected with what occurred after the execution of the deeds and the payment of the
We are convinced that the court was warranted in finding that the oral agreement pleaded was not proved, but was in error in establishing the legacies left under the will of William Overton as liens upon the real estate. William Overton died in 1885, and his executor was discharged in 1887. Twenty years elapsed thereafter before any steps were taken looking to the collection of the legacies. Even at that late date these measures consisted only in the application to the county court for the appointment of an administrator with the will annexed, which appointment was made. And some three years later this administrator filed a petition asking for a final settlement of his account. Notice was published, and the county court entered a decree finding that the only duty devolving upon the administrator was the collection of the bequests, and that they were a charge upon the real estate, and that upon the collection thereof the administrator would be discharged. No further steps were ever taken.
So much of the decree as directs Martha C. Sack to pay $200 into court is entirely beyond the issues and is set aside. Kohler has not appealed from the judgment directing him to pay $4,800 into court, and therefore as to him the judgment will be affirmed, but modified, however, by striking out that clause directing the payment of $4,000 thereof to Charles W. Sack, and the whole amount, if collected, shall be credited to the estate of William B. Over-ton, deceased.
Having reached the conclusion that the deeds ought to be canceled and set aside, but that Sack is entitled to a return of his money, the cause as to him is reversed and remanded, with directions to the court to enter a decree setting aside the deeds, and to make an accounting of the value of any permanent improvements Sack may have made on the premises, and credit him with this amount, together with the original purchase price, with interest thereon at the rate of 7 per cent, per annum from date of payment, and from the amount so found deduct the value of the rents and profits of the real estate while in his possession, and establishing the amount so found to be
Modified and remanded, with directions.
Concurrence Opinion
concurring.
I think that the judgment is rightly ■ reversed, but I do not think it should be left entirely at the option of the plaintiffs to cause a sale of the property.