The defendant William J. Plested was formerly the owner of the land in controversy. Through the agency of one Grisell, he sold and conveyed the land to John Roberts, in exchange for lands owned by the latter in Nebraska. Later, Roberts sold and conveyed the land to the plaintiff in this action. Thereafter, Plested, claiming to have been defrauded in the deal with Roberts, denied the validity of the title acquired by plaintiff, who began this, proceeding to quiet same.
Plaintiff obtained his title from Roberts by warranty deed, and says that he took the same in good faith for a valuable consideration, without notice or knowledge of any adverse claim on Plested’s part. The defendant Plested, in answer to the petition, alleges that he was induced to make the deed to Roberts by false representations on the part of the latter concerning the character, quality and value of the Nebraska land, and that, soon thereafter, and before Roberts had made conveyance to him of the Nebraska land; he learned of the fraud which had been practiced upon him and rescinded the exchange, — of all which he says plaintiff had notice when he took the conveyance from Roberts. Relying upon this defense, Plested asks that the petition be dismissed, and that his title be quieted against the plaintiff. Roberts was also made a defendant, and filed an answer by attorneys Milligan & Moore (who also represent plaintiff), in which answer he, in substance, conceded the plaintiff’s title to be as stated in the petition. In reply to the answer of Plested, plaintiff alleges that, prior to consummating the deal with Roberts, he met Plested, who was then in possession of the land, and, being-told that plaintiff was to make a trade for it, Plested informed plaintiff that his possession was as tenant only, and did not
It does not appear that either Milligan or Moore had ever been consulted by defendant with respect to his interests or claims against the plaintiff in this case. The utmost which they had done was to become engaged, tentatively perhaps, to assist in presenting The defendant’s claim or claims against Roberts, and it was quite possible for defendant to have a good cause of action against Roberts and yet be without a good or sufficient defense against the right of plaintiff, if a purchaser without notice, to have the title quieted in him; and there would be no clear violation of professional propriety in advocating plaintiff’s suit in such case and in representing defendant in asserting a claim for damages against Roberts. It may be true that a sensitive regard for the proprieties would have prevented their filing answer for Roberts in a suit to which they had made him a defendant, but the answer was, in effect, a simple admission of the truth of the claim set up by plaintiff. It took no issue with the plaintiff and asserted no cross-claim against the appellant. The impropriety, if any there was, was. purely of a formal character and did not in any manner prejudice the substantial rights of the appellant.
It is unnecessary to pursue the discussion further. The burden was upon appellant, not only to prove the alleged fraud by which he was misled into the conveyance of his land to Roberts, and his rescission of such conveyance promjitly upon ascertaining the truth, but also to prove that the appellee took the title from Roberts with notice of these facts. In this latter respect, at least, there is a manifest failure of proof.
The decree below is right, and it must be, and it is,— Affirmed.