93 Neb. 34 | Neb. | 1913
Lead Opinion
The plaintiff in the court below, now the appellant, commenced this proceeding to have vacated ánd set aside a certain decree of the district court for Douglas county rendered on the 10th day of July, 1893, against the plaintiff and others, then minors, in an action brought by DeWitt O. Sutphen and Charles D. Sutphen, grandfather and father of the plaintiff, respectively, against George A. Joslyn, seeking to compel Joslyn to specifically perform liis contract of purchase from the Sutphens of a certain
The plaintiff in the present action, more than one year after having attained his majority,-brought this suit in the nature of an original bill in equity to have that decree set aside, and for a new trial. Upon a trial of the issues joined the district court dismissed the plaintiff’s petition, and from that judgment the plaintiff has prosecuted this appeal.
It is argued that there was fraud in procuring the decree of July 10,1893. In the present action the district court found specifically that there was no fraud in the decree in question, and from a careful reading of the record we are of opinion that no other finding could have been made.
It appears, without dispute, that on the 1st day of April, 1893, the elder Sutphens entered into a contract with the defendant Joslyn for the sale and purchase of the five-acre tract of land now in question; that the considera
Upon, the question as to whether the transaction amounted to constructive fraud: The finding of the district court set forth in an able and exhaustive opinion contained in the record herein is, in substance, as follows: The next question is, did that which Avas done in fact, no matter from what motive, constitute constructive fraud or fraud in law? And Ave are again impelled to the same conclusion upon this point, and to hold that it did not. There was undoubtedly a tona fide intention betAveen the parties to this sale, on the part of "the one to buy, and on the part of the other to sell, and after the discovery of what the purchaser deemed was an obstruction to the title there seemed to be the same good faith desire on the part of both to test its legal significance in the only way in which it could be effectively tested — in a court of justice. Now, it seems to us, if this be true, it could not matter to any one concerned Iioav they agreed to formulate '.he suit by which this question could be tested, so long as no one concerned was, or could be, in. any manner prejudiced thereby. There was no concealment from any one of any material fact; there Avas no disputed fact; no material fact was involved over which there could be a dispute. There was simply prepared and presented to the
It is argued, however, that the proceeding was simply a moot suit. This argument is not persuasive. The transaction out of which it became necessary to institute a suit did not originate in sham or collusion. Surely the elder Sutphens had a right to know and have judicially determined what was the extent of their interest in the property in question by virtue of the will of Emily M. Sutphen. Likewise defendant Joslyn, after the execution of the contract of purchase, and he had become the equitable owner of the land, had a right to know the state of the title he was to receive, and to accomplish that purpose a construction of the will was required. That was virtually what the suit was, so far as the rights of the minors were concerned. Again, the Sutphens might have brought suit at any time against the minors to have a construction of that instrument. The minors themselves through a guardian ad litem or next friend might have instituted such a suit against the elder Sutphens for the same purpose. The actual facts as they existed were fully set forth to the court. The district court which pronounced the decree in question had jurisdiction of the parties and of the subject matter. It assumed to exercise it, and granted the relief requested. At most, the decree may have been erroneous, but it was not void.
It is suggested that making the minors parties to the suit for specific performance had the effect of depriving them of a trial by jury. This is not so, ior under no circumstances could the rights of the minors ever have been a question for a jury. It Avas a pure, unmixed question of law at all times, and under all circumstances to be determined by the court. If it were made to appear that there was involved in the hearing of that case so much as a single disputed fact, a determination of which Avould
From the foregoing, we conclude that the findings of the district court upon the question of fraud are amply sustained by the evidence. Having reached that conclusion, it is unnecessary for us to determine any of the other points urged by counsel. Finding no error in the record, the judgment of the district court is
Affirmed.
Dissenting Opinion
dissenting.
No extended effort will be made to criticise the opinions. The opinions are delivered in Nos. 16,634 (ante, p. 34) and 17,236 (p. 45, post). I am compelled to dissent in these cases because I believe the course pursued in the district court for Douglas county in the original case was in disregard of the rights of the heirs. The grandmother intended the property for her grandchildren. No attention was paid to her wishes in the matter. While there was no evil intent — no intent to deprive the grandchildren of their inheritance — the district judge and counsel sought an opportunity to apply the property otherwise than it was intended. If that sort of thing may be done in these cases, it may be done in any case. Hereafter, what