79 Neb. 742 | Neb. | 1907
In October, 1904, one Samuel Rihner of Pottawattamie county, . Iowa, conveyed to one Peter B. Jacobs, of the same place, a farm of 312 acres situate in Sarpy county in this state, subject to a mortgage of $11,500. The consideration ivas $31,200, and Jacobs paid in cash $100, and gave his notes, secured by 196 shares of the capital stock of the Northwestern Trust Company of Guthrie, Oklahoma, of the par value of $100 a share, for the remainder of $19,600. The deed given by Rihner was recorded January 5, 1905, and another deed for the same property was executed by and to the same parties on January 21, 1905, which latter deed was recorded February 2, 1905. The deed last mentioned is said to have been given to more fully describe the property intended to be conveyed, and contains the statement: “This deed is made in lieu of the deed made and signed by Samuel Rihner, Sr., and Katherina Rihner, his wife, on the 17th day of October, 1904, the signers of this deed being both the same persons.” On the 17th day of March, 1905, Rihner, becoming suspicious that the stock of the Northwestern Trust Company given him as security was of
1. The interveners argue that the amended petition is not sufficient because, as they allege, there is no allegation that Rihner was in any manner damaged by his reliance upon the statement of Jacobs. It is alleged in the petition that the defendants represented the stock of the Northwestern Trust Company to be worth par and paying an annual dividend of 12 per cent.; that these representations were false and known by Jacobs to be false at the time of their being made, the said stock being in fact worthless, but that Rihner, fully believing the said
2. The interveners urge that the evidence is not sufficient to support the finding in favor of the plaintiffs, although, in what particular, the brief and argument of the interveners does not specify. The making of the representations, and the reliance of Rihner upon them, and the making of the deed in consequence, is fully established, and, if there was any want of proof of the falsity of the representations concerning the character and value of the stock, we think it is supplied by the answer of the defendants, which is to the effect that the sale was really made to the trust company, Jacobs being a trustee, and that the stock was issued in payment of the purchase price of the land; in other words, that the land was paid for with the stock, and the stock was paid for by the land. This, we think, is an admission that the stock was not, as represented by Jacobs, fully paid up and earning a dividend of 12 per cent. In addition to this there was the admission of Mr. Jacobs “that the transaction had not been a square one”; and, again, “that it had not been just as it should have been and he would give additional security to make it right.” We think the evidence sufficient to support the finding of the trial court.
3. The interveners contend that there is no allegation or proof to show under what circumstances the second deed was given or to impeach its validity. The deed itself, as we have seen, contains the statement that it is given in place of the first deed, and, in the absence of any shoAving that there was any new or different consideration, we think the two should be considered, in view of this recital, as one conveyance, and that they must stand or fall together. It is, however, urged that by giving the second
4. It is a general principle that an attachment reaches only the actual interest of the debtor in the property attached. Barnes v. Cox, 58 Neb. 675; Chicago, B. & Q. R. Co. v. First Nat. Bank, 58 Neb. 548. But in this case the interveners contend that they became Jacob’s surety in reliance upon his apparent ownership of the Sarpy county land, and that the plaintiffs ought therefore to be estopped to claim, as against them, that it was not in fact Jacobs’ property, invoking the principle that, where one of two innocent persons must suffer by the fraud of a third, he who trusted the third person and placed the means in his hands to commit the wrong must bear the loss. If Jacobs had mortgaged the land in question to secure the interveners against the liability incurred by them, there can be no question that the rule stated above would have applied, and that the mortgage would have been valid. Hansen v. Berthelsen, 19 Neb. 483. In such case, Jacobs
5. There is a theory approved and adopted by the courts of some states which makes the very essence of equitable estoppel to consist of fraud, and affirms that an actual fraudulent intention to deceive or mislead is a necessary requisite in the conduct of the party in order that it may create an equitable estoppel. Boggs v. Merced Mining Co., 11 Cal. 279; Martin v. Zellerbach, 88 Cal. 300. In a general discussion of the principles, elements, ■ operation and effect of equitable estoppel, Mr. Pomeroy comes to the conclusion that such fraud is not a necessary element, except as the word fraud is used as synonymous with “unconscientious” or “inequitable,” and that it is accurate to describe equitable estoppel in general terms as such conduct by a party that it would be fraudulent or a fraud upon the rights of another for him afterwards to repudiate and to set up claims inconsistent with it. 2 Pomeroy, Equity Jurisprudence (3d ed.), sec. 803. Applying this rule, Which is most favorable to the existence of such estoppel, to the facts before us, we are led to influiré whether it is unconscientious or inequitable for Kilmer to assert that Jacobs was not really the owner of this land because of the fraud he had practiced in obtaining it. If the interveners had taken a specific lien upon the land, the solution would have been, as we have already seen, very simple. In such case there could have been no question as to their reliance upon Jacobs’ act, nor of negligence upon their part. But the facts before us present an entirely different case. The interveners both testify that Jacobs told them he had a deed to the farm, and one of them says that he had heard of it the fall before. While they both say that they would not have signed the note if they had not believed Jacobs owned the farm, there is no evidence that either saw the deed, or knew the land, or examined the record. They relied upon
We therefore recommend that the finding and decision of the court below upon the petition of intervention be reversed and said .petition dismissed, and that the judgment be otherwise affirmed.
By the Court: For the reasons stated in the foregoing opinion, the finding and decision of the court below upon the petition of intervention is reversed and said petition dismissed, and the judgment is otherwise affirmed.
Judgment accordingly.