14 Or. 66 | Or. | 1886
This is a suit in equity for the partition of certain lands known as the Marcus Neff Donation Land Claim, in which the plaintiffs and defendants were interested as tenants in common. Without adverting to much preliminary matter now unnecessary for the consideration of the case, it .is sufficient to say that the object of the answer of the Neffs, and the evidence they produced to support it after issue joined, was to establish their equitable ownership to the respective portions of the land claimed by each and all the other parties to the suit, and to have the deeds held by them, respectively, to the same set aside and cancelled, and declared to be null and void. The cause was referred to a referee, to take the testimony and report the finding of facts and conclusions of law, which resulted adversely to the Neffs. Subsequently, upon the report of the referee coming up before the court below, on motions of the respondents to confirm, and the exceptions thereto of the appellants, the court, after argument and advisement, confirmed the report of the referee, and rendered the decree herein from which this appeal is taken. In the course of the argument of the appellant, this court being satisfied that no case was made against Whalley, Feehbeimer and Page, the suit wa3 dismissed as to them; but not being so satisfied as to the other respondents, ordered the argument to proceed as to them. The case is almost purely one of fact.
And first, as to the respondent Geo. F. Wells. His interest in the property comprised the interest in the Neff claim of George Neff and Mary A. Lousignont (Neff), children of Marcus and Margaret J. Neff, and the life interest of Margaret J. Neff. As to these interests, it is not disputed that the respondent Wells paid a valuable consideration to each of the parties of whom he made the purchase; nor are any of the parties of whom he made the purchase, except the appellant Margaret J. Neff, parties to the suit, or making any charges of unfairness or want of good faith in the several transactions. And the only inquiry in respect to the respondent Wells is, whether he was a bona fide purchaser.
The evidence shows that while Wells was negotiating with Mrs. Neff for her life lease, she knew that he was at the same time negotiating with George and Mary, for the purpose of purchasing their respective interests in the land, which they held by deeds from the appellants; and that his object in purchasing her interest was, in the event he concluded the bargain with George and Mary, to have the property free from that incumbrance, so as to make it available for the purposes of speculation and sale, and to enable him to give a clear title to purchasers. During all the time this negotiation was proceeding, and while thus understanding that Wells did not wish to purchase any of the different interests held by them, unless he could have a clear title, Mrs. Neff neither represented nor made any claim to the respective interests held by George and Mary ; but, we think, by her acts and conduct, led him to believe that she had no such claim, and that the interests in the land of George and Mary were valid and bona fide. Nor do
We now come to the contention between the appellants and the respondent Budd. His interest in the land was derived from the appellants, by deed duly executed by them, the alleged consideration for which was services rendered as an attorney, and money advanced. This deed is claimed to be without consideration, and fraudulent. It appears that while tire appellant resided in Stockton, Cal., where the respondent Budd then and now resides, the father of Margaret J. Neff died, leaving certain property to her children, and that upon her application, the respondent Budd was appointed their guardian. The names of these children were Nancy, George, and Mary. In May, 1875, Nancy became of age, and the respondent Budd, after having paid over and delivered to her all the property he had received, as the guardian of her estate, filed his account, and was, by a decree of the probate court, discharged from his duties and obligations as such guardian. Subsequently the appellants executed to their daughter, Nancy Neff, a deed to one-sixth of their interest in the donation land claim in Oregon. On the 14th day of February, 1877, Nancy Neff made a will, whereby she bequeathed and devised all her property to the respondent Budd; and on the 15th day of February, 1877, she died, leaving property in the city and county of San Francisco. And thereafter, in March, 1877, the said last will was duly admitted to probate under the laws of California, and by the probate court of said county. But no steps were ever taken to record such last will in Oregon, or other proceeding had to make it available against the property here. On March 18, 1878, the appellants executed a deed, for certain considerations alleged, to Mary Neff, George Neff, and the respondent Budd, to certain undivided interests in said do
Tims matters stood until this suit was instituted for the partition of the respective interests of the parties, when the claim, made by the appellants was set up in the answer, to set aside the deeds held by the adverse parties to the suit. A great deal of testimony was taken in respect to the will of Nancy Neff, and to the matter of the alleged professional services and money advanced, which constituted the consideration for the deed to the respondent Budd. But the chief defense relied upon is a settlement in which all matters between the parties were fully adjusted and liquidated. The number of acres to which the respondent Budd would have been entitled by the partition was about sixty-seven. But this was subject to the life estate of Margaret J. Neff, appellant. By the settlement, the respondent Budd transferred by deed to the appellants all his interest in said claim, in excess of fifty acres thereof, which was to be and remain his property, free and released from the life lease of Mrs. Neff; and at the same time as part of this transaction, the appellants by deed released and forever quit claimed to Budd all their right, title and interest, including the said life lease, to said fifty acres in said donation claim. And the referee found—which was confirmed by the court—that these deeds were executed freely and voluntarily by each of the parties therein named, and that the deed from the appellants to respondent Budd was not obtained by fraud or misrepresentation.
The evidence shows that the will in favor of the respondent Budd {whatever the rights to which he may have been entitled under it), and all other matters of difference between the parties, were included in this settlement. In a word, that it was intended to be a full and complete settlement of all differences and questions of property rights between them. It is claimed, however, that the appellants were led into this settlement by misrepresentation in respect to the will.
was of opinion that the will of Nancy Neff, of Feb. 15, 1877, was void by reason of the nonage of the testatrix ; and that the extent to which this fact might affect the decree as to the defendant Budd, riot having been considered by the counsel or the court, further argument should be had upon the point.
Upon reargument, the following opinion was delivered November 2, 1886:
Per Curiam.—The opinion heretofore filed in this cause disposed of every question presented ; but in a petition filed for rehearing by counsel for the appellants, it was insisted that the court had not given full effect to the evidence in their favor, touching the alleged settlement with Budd, referred to in their answer. For the purpose of hearing further argument on this point, a rehearing was ordered, and the cause having been again argued, as to whether Budd was guilty of fraud in procuring that settlement, we shall now briefly state our conclusions thereon.
The settlement occurred in the office of Mr. Bell, attorney for the appellants, on May 26th, 1883; and at the time the same was concluded and the deeds exchanged, there were present the defendant and J. H. Budd, Judge Woodward, Marcus Neff, Margaret J. Neff and Sidney Bell. By the terms of that settlement, Budd was to have 50 acres of the land in controversy, under the deed of March 18th, 1878, the same to be discharged from a life estate of Margaret J. Neff therein, and to be set apart to him in the then pending partition suit; and he
But it is charged that this will was forged, and that the respondent Budd was a party to the forgery. This was stated in the argument by counsel for the Neffs ; but we have sought diligently for evidence to support it—it is not in the record.
There is one other question that appears upon the face of the answers of the Neffs, and that is, they have not tendered back to Budd a deed for any interest they may have derived from him in the Neff claim by the terms of the settlement. They could not repudiate the settlement, and at the same time hold on to advantages it may have given them. “ He who seeks equity must do equity.’’ Having determined that the settlement is unimpeached, we decide this case solely upon that ground, though the objection last stated would be alike fatal to the appellants. A party prevailing in this court is entitled to his costs, unless for special equitable reasons growing out of the case we should order otherwise, and this, we think, we ought not to do in this case.
The decree of the court below will be affirmed with costs, and it is so ordered.