Beindorff v. Kaufman
| Decision Date | 19 September 1894 |
| Docket Number | 5134 |
| Citation | 60 N.W. 101,41 Neb. 824 |
| Parties | CHARLES BEINDORFF, APPELLANT, v. DAVID KAUFMAN ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before HOPEWELL, J.
AFFIRMED.
Cowin & McHugh and C. W. Haller, for appellant:
The facts and circumstances of the case as disclosed by the record do not in law constitute duress or undue influence. (Sanford v. Sornborger, 26 Neb. 295; Hilborn v Bucknam, 78 Me. 482; Mundy v. Whittemore, 15 Neb. 647; Sornborger v. Sanford, 34 Neb. 498; Compton v. Bunker Hill Bank, 96 Ill. 301; Greene v. Scranage, 19 Iowa 461; Landa v. Obert, 45 Tex. 539; Weber v. Barrett, 25 N.E. [N. Y.], 1068; Harmon v. Harmon, 61 Me. 227; Bodine v Morgan, 37 N. J. Eq., 426; Fulton v. Hood, 34 Pa. St 365.)
The execution and acknowledgment of the mortgage in question was an act of the will and the judgment of the grantors,--a deliberate conviction, after consultation with counsel and interchange of views between themselves and relatives, of what was best to be done under the circumstances. (Weber v. Barrett, 25 N.E. [N. Y.], 1068; Greene v. Scranage, 19 Iowa 466; Harmon v. Harmon, 61 Me. 227; York v. Hinkle, 50 N.W. [Wis.], 895; Prichard v. Sharp, 51 Mich. 432; Gates v. Shutts, 7 Mich. 127.)
After the execution of the mortgage, the same was ratified by the grantors and acted upon by the grantee, and defendants cannot now insist upon a rescission of the contract. (Lawson, Property Rights, sec. 2367; Leake, Contracts, 425; Bodine v. Morgan, 37 N. J. Eq., 426; Sanford v. Sornborger, 26 Neb. 295; Maxwell, Code Pleading, pp. 433-436.)
L. D. Holmes, contra:
The grantors were induced to make, execute, and deliver the mortgage in controversy through fear and by threats of appellant to prosecute and imprison their son, and by the fraud and imposition practiced by appellant's agents in securing the same. The mortgage was also made to stifle prosecution, and is illegal and void.
The appellees are not estopped to make their defense. An action for relief on the ground of fraud may be commenced at any time within four years after discovery of the facts constituting the fraud, or of facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to such discovery. (Parker v. Kuhn, 21 Neb. 413; Hellman v. Davis, 24 Neb. 793; Wright v. Davis, 28 Neb. 479.)
The opinion contains a statement of the case.
This action was for the foreclosure of a mortgage securing the payment of three promissory notes given by David Kaufman and Kaufman Bros. to Charles Beindorff. The mortgage was made by Levi Kaufman and his wife, the parents of the makers of said notes. The defenses interposed by the mortgagors were duress and that the mortgage was given to compound a felony, alleged to have been committed by David Kaufman. From a decree canceling the aforesaid mortgage an appeal has been taken to this court.
On the trial there was introduced evidence, and in this court argument is directed to the consideration that Levi Kaufman, with his associates, had, previous to the execution of the mortgage, received transfers of all the property of which David Kaufman and Kaufman Bros. were owners. No averments of the petition, however, warrant an inquiry as to whether or not Levi Kaufman held this property as trustee, and whether or not there were circumstances which rendered it but equitable that he should secure the claim of appellant. The action was one simply for a foreclosure, in which, after several amendments, there were, beside the usual averments in such cases, statements as to an extension of time and the surrender of collaterals obtained by giving the mortgage in question. The finding of the trial court was that there was a sufficient consideration to sustain the mortgage, so that it is unnecessary to consider circumstances other than those tending to prove or disprove that the mortgage was procured by duress, or was given in consideration of compounding a felony.
On the 24th day of December, 1887, appellant sold his cigar and tobacco store in Omaha to Kaufman Bros., a firm composed of David Kaufman and Isaac Kaufman. As part payment the notes hereinbefore referred to were executed, each for the sum of $ 1,000. As security for the payment of these notes David Kaufman assigned and delivered to appellant certain executory contracts and notes. These contracts had been made by David Kaufman to George M. Winkleman and Thomas Bethel, and provided that upon payment of the entire sum of $ 2,600 evidenced by the notes of Winkleman and Bethel to David Kaufman, the said Kaufman would convey the property, which was the subject-matter of the contracts, to Winkleman and Bethel. These executory contracts and these notes were those assigned as collateral by David Kaufman to appellant. These executory contracts were never recorded, neither was the assignment of them, and David Kaufman, taking advantage of this want of notice, was able to, and did, mortgage the land described in the executory contracts aforesaid to John L. Miles on December 29, 1887. When this was discovered by appellant's attorney he prepared a complaint against David Kaufman upon a criminal charge under section 28, chapter 32, Complied Statutes, and under section 127 of the Criminal Code. This complaint was sworn to by Otto Beindorff, son of appellant. With this complaint in his possession, and two deeds necessary to cure defects in title to the land upon which a mortgage was desired, appellant's attorney and Otto Beindorff called on David Kaufman. Mr. Haller, the aforesaid attorney, then told David Kaufman that he had come on behalf of appellant with respect to the notes in controversy and to secure which said Kaufman had given certain real estate contracts and notes, and charged that since transferring said contracts he, the said David Kaufman, had mortgaged the property in said contracts described to John L. Miles without disclosing to Miles the prior sale of said land contracts; that the mortgage itself showed that it had been taken with warranties of title in the said David Kaufman against the existence of any incumbrances. David Kaufman admitted that these charges were true, but said he had no other security which he could pledge. Mr. Haller then told him that he had brought a mortgage (describing it), ready for execution; that he had found the title first in David Kaufman, by whom it had been transferred to David's father by quitclaim deed in which David's wife had not joined, and he urged that David's father and mother should sign the above mortgage, and said that if there was not executed a proper quitclaim deed by David and his wife, and the proposed mortgage by David's father and mother, that on behalf of appellant he would begin a prosecution against David upon the information which he then read to David. Upon the suggestion of Mr. Rosenfield, a brother-in-law of David, all parties present went to the office of Mr....
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