Delorac v. Conna

• Decision Date: 01 July 1890
• Citation: 29 Neb. 791,46 N.W. 255
• Parties: DELORAC v. CONNA ET AL.
• Court: Nebraska Supreme Court

29 Neb. 791

46 N.W. 255

DELORAC

v.CONNA ET AL.

Supreme Court of Nebraska.

July 1, 1890.

Syllabus by the Court.

The defendant L. M. S., a resident of California, fell heir to an undivided one-third of 320 acres of land situated near Weeping Water, Neb., worth from $25 to $30 per acre, which she had never seen, and had no knowledge of its location or value. The plaintiff, desiring to purchase the real estate, visited L. M. S. and her husband at their home, in Oakland, Cal., and represented to them that the land was wild and unproductive, and that $10 per acre was far above its real worth. Relying upon such statements, the defendants sold and conveyed the property to the plaintiff. Held, that the vendors were entitled to have the deed canceled on account of the misstatements of the vendee.

Appeal from district court, Cass county; CHAPMAN, Judge.Byron Clark, for appellant.

Windham & Davies and E. H. Wooley, for appellees.

NORVAL, J.

This suit was instituted in the district court of Cass county, against George R. Conna, to cancel, as being a forgery, a deed, placed upon the records of said county, purporting to have been executed by one Elizabeth Stafford to said George R. Conna, covering 106 2/3 acres of the S. 1/2 of section 8, township 10, range 11, in said county. The petition of the plaintiff alleges: “(1) That on the 9th day of February, 1886, and immediately prior thereto, Lizzie H. Safford, niece and heir of the late John Whitelock, was the owner in fee of the following described premises, viz.: All that certain piece of land commencing at a point on section line 106 2/3 rods west of the south-east corner of section 8, town 10 north, of range 11 east, of the 6th P. M., and running thence west along said section line 106 2/3 rods; thence north 160 rods to half-section line of said section 8; from thence east 106 2/3 rods along said half-section line; and from thence 160 rods to place of beginning; being 106 2/3 acres, more or less, and a part of said section 8, in Cass county, Neb. (2) Plaintiff, further complaining, avers that on the 28th day of October, 1887, the said Lizzie M. Safford and her husband, Hiram S. Safford, by good and sufficient deed, and for a valuable consideration, conveyed to her a title in fee to said above-described land, and that she is now the complete and sole owner of the title to said land, and all the interest of Lizzie M. Safford therein. A copy of said deed is hereto attached, marked ‘Ex. A,’ and made a part of this petition. (3) And plaintiff further avers and complains that on March 5, 1886, at 11:30 A. M., the said George R. Conna filed in the office of the county clerk of Cass county, Neb., for record, a pretended deed to the land herein described, purporting to run from Elizabeth Stafford, an unmarried woman, and a resident of Galveston, Tex. Said deed purports to have been made in Galveston, in the county of Galveston, Tex., on the 9th day of February, A. D. 1886, and to be acknowledged before one G. W. Bromide, notary public of said county, and to be witnessed by one James Rider and one J. P. Cooper. Now, plaintiff alleges that said pretended deed is a fraudulent conveyance; that there is no such person as Elizabeth Stafford, who has now, or ever has had, an interest in said described land; that there is no such notary as G. W. Bromide, or witnesses James Rider and J. P. Cooper, in Galveston, Tex., now, or at the time of the exection of said deed, as therein indicated. Wherefore plaintiff alleges that said deed is a fraud, and that the record of the same makes an illegal and fraudulent incumbrance upon plaintiff's title to said property; the name of Elizabeth Stafford, appearing to said deed as grantor, being a forgery. (4) Now, plaintiff further avers that Lizzie M. Safford, the heir of John Whitelock, deceased, and a married woman, was at the time of John Whitelock's death, and at the date of the fraudulent conveyance herein described, a married woman; her home being in Oakland, Alameda county, Cal.; that she did not sign the pretended deed to George R. Conna, defendant; that she had no knowledge of its existence for a long time after its record in Cass county.” The prayer was for the cancellation of the deed, and that the title of the land be quieted in the plaintiff.

Afterwards Elizabeth M. Safford and Hiram S. Safford were permitted to intervene, and file an answer and cross-bill, alleging therein:

“(1) That these defendants are the grantors in the deed made, executed, and delivered to plaintiff, October 28, 1887, purporting to convey to said plaintiff the lands in said petition described, and by which deed she alleges title thereto, and that said deed was so delivered to plaintiff for the money consideration therein named, of ten dollars.

(2) Defendants allege that in or about the month of June, 1872, they moved their place of residence from Washington, D. C., to the territory of Nevada. From there they moved to Alameda county, in the state of California, about the month of November, A. D. 1879, at which latter place defendants have ever since, and do now, there reside; their post-office, during all of said time, being the city of Oakland, in said county and state.

(3) That, ever since these defendants so moved their residence from Washington, D. C., their exact whereabout has at all times been known to their relations, who were living in the eastern states, but were especially and particularly known by the plaintiff herein, and her father and mother, John and Rebecca Delorac, and that said plaintiff and her mother are now, and for a long time past have been, residents of the city of Cincinnati, in the state of Ohio.

(4) That the mother of this defendant, Elizabeth M. Safford, and the mother of plaintiff, and one John Whitelock, now deceased, and one Elizabeth Maltas, were brother and sisters.

(5) That some time in the month of September, 1883, the said John Whitelock, being then a resident of Hamilton county, in the state of Ohio, died, leaving an estate of which said plaintiff's mother, Rebecca Delorac, Elizabeth Maltas, and the defendant herein, Elizabeth M. Safford, were the sole heirs and legatees; this defendant acquiring a one-third interest by right of representation of her mother, who had died long prior to decease of the said John Whitelock, this defendant being her sole and only child and heir.

(6) That said Rebecca Delorac and Elizabeth Maltas had the probate court of Hamilton, Ohio, probate and administer upon said estate, real and personal, and instituted a suit in the district court of Cass county, Neb., wherein and whereby they caused the lands belonging to said estate, and all of which were situated in said Cass county, Neb., to be partitioned and divided between said Rebecca Delorac, Elizabeth Maltas, and the defendant Elizabeth M. Safford; there being set apart to each 106 2/3 acres of land.

(7) That neither of these defendants have ever been informed by any of the parties or heirs of any person, directly or indirectly, of the death of said John Whitelock, of the probating of his estate, or that the defendant herein, Elizabeth M. Safford, was an heir or legatee of any portion of said estate, but that each of them have at all times been in total ignorance of each and all facts hereinbefore alleged and set forth in paragraphs 5 and 6.

(8) That on or about October 9, 1889, the plaintiff herein came to the home of these defendants in Alameda county, Cal., for the purpose, ostensibly, of making a friendly visit, but in truth and in fact for the sole purpose of cheating and defrauding said defendants out of their interest in the estate of John Whitelock, deceased, (she being well informed of the value thereof, and well knowing that said defendants were wholly ignorant of the death of said John Whitelock, and the existence of any estate, or part thereof, descending to them,) and for the purpose, aforesaid, of cheating and defrauding them out of their interest in said estate, did willfully, falsely, and fraudulently, for the purpose of deceiving and cheating said defendants, inform them that her father, John Delorac, had died last spring, and that said John Whitelock had died before, in September, 1886, when, in truth and fact, he had been dead for about five years. Said plaintiff further informed these defendants that he, the said John Whitelock, deceased, had left a little property,--a very little; that it was of very small value, consisting of five or six hundred dollars in money, which was in the hands of her mother, and about one hundred acres of land, which was wild and uncultivated and unproductive; that it was located on the frontier, beyond the confines of civilization, and, while it was of no particular value now, it might be some day; that her mother had given Elizabeth Maltas a few acres of land, and that she (Elizabeth Maltas) and her husband, were living in Chicago, and that she had taken care of said John Whitelock for a long time prior to his death; that he had been a great care, and was the cause of much anxiety, and was a great expense to her; and that she had not received any compensation therefor, and that, inasmuch as the defendant herem, Elizabeth M. Safford, had been to no care or expense of the said John Whitelock, deceased, and as her interest in said estate was of such small value the land would be a burden, instead of a source of income, she was willing to take said interest as a partial compensation for her services, care, and expense in and about said John Whitelock prior to his death, and would pay the defendant herein, Elizabeth M. Safford, a nominal consideration therefor of ten dollars, and that this defendant ought to be willing to do so, as she would never have known of her interest in said estate if plaintiff had not informed her, and that she could not get her interest out of said estate without the consent of said plaintiff's mother; all of which statements were wholly false and untrue at the...