Bookwalter v. Lansing

• Decision Date: 09 February 1888
• Citation: 23 Neb. 291,36 N.W. 549
• Parties: BOOKWALTER v. LANSING ET AL.
• Court: Nebraska Supreme Court

23 Neb. 291

36 N.W. 549

BOOKWALTER

v.LANSING ET AL.

Supreme Court of Nebraska.

February 9, 1888.

Syllabus by the Court.

Where an agent for the sale of real estate conceals from his principal material facts relative to the value of the property to be sold, and by a subterfuge fraudulently purchases the property from his principal, in the name of another, for less than its value, the principal may, by proper proceedings in equity, rescind the sale, and require a reconveyance of the property from the agent; but this rule would have no application if the agent, in good faith, and without any design to obtain the property for himself, sold it to a purchaser, reported the sale to his principal, givthe terms and conditions thereof, and, after the ratification of the sale by the principal, purchased the land from the party to whom it had been sold, and received a conveyance from him, no fraud having been perpetrated against his principal.

Questions of fact are for the trial court to determine, and a decision thereon will not be molested by an appellate court unless manifestly wrong.

Appeal from district court, Lancaster county; HAYWARD, Judge.

Action to set aside deed to real estate, brought by Francis M. Bookwalter against James F Lansing and Samuel W. Deffibaugh. Judgment for defendants, and plaintiff appeals.

Harwood, Ames & Kelly, for appellant.

Sawyer & Snell and J. W. Lansing, for appellees.

REESE, J.

This action was brought by plaintiff in the district court of Lancaster county, against defendant, to set aside a deed to real estate. The allegations of the petition may be briefly stated to be: That plaintiff is a citizen of the state of Ohio, and was, on and prior to the 9th day of September, 1885, the owner in fee-simple of a tract of land known as “Block 9,” in East Lincoln. That on and prior to that date he had employed defendant Lansing, who was a citizen of Lincoln, and engaged in the business of real-estate agent and broker in said city of Lincoln. That, at the time mentioned, plaintiff, being a resident of another state, was not familiar with, and was ignorant of the values of real estate, and of the property mentioned, but that Lansing, by his long residence and acquaintance, and the nature of his business, was thoroughly informed as to said value, and that plaintiff, as defendant well knew, reposed full confidence in his skill, judgment, and integrity in the management and sale of plaintiff's property. That on or about said date, the defendant Lansing, seeking and contriving to cheat and defraud plaintiff, by taking advantage of and abusing the confidence reposed, informed plaintiff by letter that he had sold said block 9 at its fair and reasonable market value, to the defendant Deffibaugh, whom Lansing represented as residing at Bedford, Bedford county, Pennsylvania, for the agreed price of $3,000,--$1,500 thereof to be paid in cash, upon the delivery of the deed, and $1,500 to be paid in one year, secured by mortgage on the property. Plaintiff alleges that, relying on the statements and representations made by Lansing, he affirmed the sale, and executed, acknowledged, and delivered a deed of that date to Deffibaugh, and transmitted the same to defendant Lansing for delivery, pursuant to said pretended contract of sale, and that Lansing remitted to plaintiff the sum of $1,400 in cash, and the mortgage executed according to the agreement, for $1,500, reserving $100 in cash as his commission for perfecting the sale. It is alleged that Lansing had not at said time negotiated a sale of the block to Deffibaugh, or to any other person. That Deffibaugh did not reside in Pennsylvania, but that he was a resident of Lincoln, was without means, and of no pecuniary responsibility, and was, and for a long time prior thereto had been, in the employ of defendant, as a coachman and man of general work about defendant's residence and buildings in the city; and that the sole object and purpose of defendant Lansing in making the statement referred to, and inducing plaintiff to convey the block to Deffibaugh, was to enable defendant Lansing to procure the title thereto in his own name, and for his own use, for a sum greatly below what defendant Lansing then knew to be its fair and reasonable market value. That, prior to the letter reporting the sale, defendant Lansing had been offered $6,000 in cash for the property, and at the time well knew the value to be at least $9,000. That the deed was received in the city of Lincoln on the 14th day of September; but prior to the date of its being filed for record in the clerk's office, and the date at which the mortgage from Deffibaugh to the plaintiff purports to have been executed and filed for record, Deffibaugh conveyed the property subject to the mortgage to defendant Lansing; Lansing assuming and agreeing to pay the mortgage. That Deffibaugh never at any time paid to plaintiff, or to Lansing, or to any other person, the said sum of $1,400 transmitted to plaintiff by defendant Lansing, or any other sum, for or on account of the pretended purchase, but that the money was furnished and paid by Lansing out of his own means; and a deed, procured to be executed by plaintiff to Deffibaugh, was but a device on the part of Lansing to defraud plaintiff out of said land. That at the time of the execution of the deed plaintiff relied upon the false representations of Lansing, and fully believing the same to be true, and that Lansing had sold the land to Deffibaugh in good faith, for $3,000, and that the same was the full market value of the property. That during the year 1885, on account of the proposed building into the city of Lincoln of the Missouri Pacific, and the Fremont, Elkhorn & Missouri Valley Railroad, and other projected enterprises at said city, the real property therein had greatly advanced in value, but of which plaintiff was ignorant, and of which Lansing was well acquainted; but that Lansing, for the purpose of defrauding plaintiff, and with the intention of procuring plaintiff's property for a price below its real value, concealed this knowledge from plaintiff. The prayer of the petition is that the defendants be enjoined from transferring or incumbering the property, and that the conveyance be set aside, and that defendant Lansing be directed to reconvey the property to plaintiff. The answer of defendants denies the allegations of the petition so far as any concealment or fraudulent purpose or act might be alleged, admits the ownership of plaintiff in the property in question prior to the 9th day of September, 1885, and that defendant Lansing was employed by plaintiff to look after and take care of plaintiff's property, to collect rents, pay taxes, and also in trying to obtain offers of purchase for the real estate owned by plaintiff in and about Lincoln, and submitting them to plaintiff for his approval and action therein; and if the offers of purchase were accepted by plaintiff, and the sale made, then defendant was paid by plaintiff a commission for the finding of the purchaser, and not otherwise. With this exception, the agency of Lansing is denied. It is alleged that shortly prior to the 9th day of September, 1885, defendant Lansing was directed by plaintiff to try to find a purchaser of the property in question for the sum of $3,000, the price fixed by plaintiff; and in pursuance of said order and direction, Lansing, from that time on until the date of the purchase, tried to find and obtain an offer of $3,000 for the property, and was unable to do so until the date mentioned; but that on said date he received an offer for said property, and submitted the same...