65 F. 826 | U.S. Circuit Court for the District of Southern Ohio | 1895
The suit is, in substance, to set aside certain transactions, on the ground of alleged fraud. The consideration set forth, in the deed made by James Berry, Jr., to Ms mother, Eliza A. Berry, on the 21st of August, 1882, to wit, $3,000, is sufficient to support it. The transaction was between mother and son. They were heirs to each other. Either dying intestate, the other would have been his or her heir. The averments in support of the charge that the consideration was inadequate, that the property was afterwards sold for a much larger sum, are by no means conclusive. How much time intervened before that sale is not set forth. Values of real estate in cities not infrequently fluctuate largely in a short time. Although it is averred that no part of the consideration was paid to James Berry, Jr., or to any other person for his use, there is no averment that it was not applied to his use.
As to the proceedings in the probate court and the sales made thereunder, the proceedings were all regular, and the sales were duly confirmed. Distribution of the proceeds was made by the judgment of that court, which had full jurisdiction in the premises. Those proceedings have never been set aside. It'is quite true that a judgment may be impeached in equity for fraud and collusion, but only by strangers, and, as to strangers, only by those who, if the judgments were given full credit and effect, would be prejudiced in regard to some pre-existing right. Freem. Judgm. § 335, and cases
The bill does not seek to set aside those judgments, but it does seek to avoid them by holding .Roberts and Mrs. Weller accountable for the proceeds of tiie sales made thereunder. That cannot be accomplished without first setting aside the judgments, which cannot be done in a collateral proceeding. So long as the judgments remain unreversed, payments made, under them must stand.
The death of Eliza A. Berry occurred in 1886, and her will was probated in September of that year. By that will, she gave all her property, which would include the property conveyed to her by her sou under his deed in 1882, to Roberts, in trust for the support of her son, and, upon his death, divided the residue between Roberts and Mrs. Weller. James Berry died May 13, 1891, and, by the will of Eliza Berry, whatever then remained of her estate passed by its terms to Roberts and Mrs. Weller. On December 8th of that year, the real estate on Longworth street was conveyed to the Emerys. There is nothing in the hill charging Mrs. Weller with any connection with the alleged combinations and confederations. It is claimed that she derived a benefit from them, but that is not sufficient to hold her. Eliza A. Berry’s will was probated and of record in 1886. The complainant had the right, under section 5858 of the Revised Statutes of Ohio, to contest it. The provision is that a person interested in a will may contest the validity thereof in a civil action in a court of common pleas of the proper county. By section 5866 the action must be brought within two years. There are certain exceptions which do not apply in this case.
In Wood v. Carpenter, 101 U. S. 136, it is held that a party seeking to avoid the bar of the statute on account of fraud must aver or show that he used due diligence to detect it, and that, if he had the means of discovery in Ms power, he will be held to have known it. In this class of cases, says the court, the plaintiff is held to stringent rules of pleadings and evidence, and must clearly bring himself within the exceptions which he claims. The court, referring to the case before if, says:
“It will be observed, also, that there is no averment that, during the long period over which the transactions referred to extended, the plaintiff ever made or caused to be made the slightest inquiry in relation to either of them. The judgments confessed were of record, and he knew it. It could not have been difficult to ascertain, if the facts were so, that they were shams.”
In Teall v. Slaven, 40 Fed. 774, it was held that a party alleging fraud must he diligent in making inquiry; that means of knowledge are equivalent to knowledge; that a clue to the facts which, if diligently followed, would lead to discovery, is in law equivalent to a discovery.
In Godden v. Kimmell, 99 U. S. 211, the rule is stated that the cestui quo trust “should set forth in the bill specifically what were the impediments to an earlier prosecution of the claim, and how
There is no averment in the bill that the complainant ever made or caused to be made the slightest inquiry in regard to the transactions complained of. The deed and will were of record. The complainant relies upon those records to support his allegations of fraud and his averment that the defendants Thomas J. and John J. Emery were chargeable with notice of the frauds averred. If so, the complainant also was in like manner chargeable. It is averred that the papers in the case in the probate court were off the files. But there was the record of the court, from which the complainant could have obtained all the information that he could have derived from the papers themselves.
It was suggested, orally, that the record was destroyed when the courthouse was burned. This is dehors the record;' but, if the court could take judicial notice of the burning of the courthouse, it could also take judicial notice of the date of the burning, wdiich was in March, 1884, more than a year before the institution of the suit in which the record under consideration was made.
A demurrer to the original bill for insufficiency having been sustained, and the amended bill, framed to cure the defects of the original bill, being now found to be insufficient, the demurrer to it will be sustained, and the bill dismissed.