Detwiler v. Detwiler

• Court: Nebraska Supreme Court
• Writing for the Court: COBB
• Citation: Detwiler v. Detwiler, 30 Neb. 338, 46 N.W. 624 (Neb. 1890)
• Decision Date: 18 September 1890
• Parties: DETWILER ET AL. v. DETWILER ET AL.

30 Neb. 338

46 N.W. 624

DETWILER ET AL.

v.DETWILER ET AL.

Supreme Court of Nebraska.

Sept. 18, 1890.

Syllabus by the Court.

J. B. D. bought certain city lots, paying for them with his own means, and by his direction the deed therefor was made by the vendor and grantors to M. A. D., mother of J. B. D. Held, that a trust in said lots resulted in favor of J. B. D. But if the title was thus directed to be made to M. A. D. for the purpose and intention of defrauding the creditors of J. B. D., he, being insolvent, and contemplating bankruptcy, could not enforce such trust by action, but the legal title afterwards acquired by him was received free of any equitable claim of other heirs of M. A. D., she being deceased.

Appeal from district court, Douglas county; WAKELEY, Judge.Bartlett & Cornish and Savage, Morris & Davis, for appellants.

George W. Covell, and E. H. Wooley, for appellees.

COBB, C. J.

The plaintiffs and appellees in this cause exhibited their bill in the court below against the appellants for the purpose of setting aside a deed, executed by William H. Detwiler as attorney in fact of plaintiffs, to John B. Detwiler, of lots 3 and 4, of block 256, in the city of Omaha, on the ground of fraud, and to establish the plaintiffs' rights, as heirs of Mary A. Detwiler, deceased, to said lots. The plaintiffs set up that William L. Detwiler, Mary Jane Parkins, and Josephine Clinton were the children and heirs of Mary A. Detwiler, deceased; that Joseph F. Parkins was the husband of Mary Jane; that Fred Clinton was the husband of Josephine, and that they were the only heirs of said Mary A. Detwiler, except Emma De Lora Gallagher and John B. Detwiler, deceased; that said Emma and her husband, John Gallagher, were made defendants to the suit because they refused to join as plaintiffs; that Matilda A. Detwiler was the widow of John B., deceased, and that Augustus K., Caroline, and Grace Detwiler were his children, and only heirs at law. The relationship of the parties to the suit appears in the following table:

Parents--William H. Detwiler and Mary A. Detwiler. Children--John B. Detwiler, deceased; William L. Detwiler, plaintiff; Mary Jane Parkins, plaintiff; Josephine Clinton, plaintiff; Emma De Lora Gallagher, defendant.

Parents--John B. Detwiler, deceased, and Matilda A. Detwiler, defendant. Children--Augustus K. Detwiler, defendant; Caroline Detwiler, defendant; Grace Detwiler, defendant.

Husbands of Plaintiffs--Joseph F. Parkins, plaintiff, and Fred Clinton, plaintiff.

The plaintiffs set up that Mary A. Detwiler died intestate, in the year 1874, seised in fee-simple of said lots; that in said year John B. Detwiler procured the title by fraud; that his deed was executed by William H. Detwiler without authority of the plaintiffs, or any of them; that they never discovered that fact until within the year prior to the commencement of this suit; that no consideration was paid by said John B. to William H. Detwiler, or to any of the plaintiffs, or to the grantors in said deed, and that said William H. has no knowledge that he was signing a deed to said lots; that his signature was procured by said John B. by false and fraudulent representations; that the said instrument was a power of attorney or other instrument necessary in some business transaction, and which said William H. supposed he was signing as an instrument other than, and different from, a warranty deed of said premises; that he did not discover that he had made said deed until within the year prior to the commencement of this suit; and that he signed the same relying upon the representations of said John B. Detwiler, and praying that the court decree the plaintiffs each one-fifth interest in said real estate. The defendants answered denying that Mary A. Detwiler owned said real estate, and setting up that the same was purchased by John B. Detwiler, in his life-time, and conveyed to said Mary A. in trust for the benefit of said John B. and his heirs, all of which was known to the plaintiffs at the time of said Mary A.'s death, and alleging that said Mary A. held the title to said lots in trust for the use and benefit of John B. Detwiler and his heirs, and that Mary A., after receiving said conveyance, agreed to execute the trust by reconveying the lots to John B. and his heirs, and before the execution thereof, in the year 1874, the said Mary A. died suddenly leaving the legal title in her, and that, for the purpose of executing said trust the plaintiffs, in 1874, executed to the said William H. Detwiler, their father, the husband of Mary A., deceased, a power of attorney, authorizing him to make the conveyance, which is claimed by them to have been procured by fraud; that, by virtue of said power of attorney, and with their full knowledge, the property was conveyed to John B. Detwiler, by William H. Detwiler, on October 7, 1874. The answer further sets up that the claim of the plaintiffs is for the purpose of defrauding the said Matilda A. Detwiler and her children out of their title to said real estate; and further interposes the statute of limitations. The plaintiffs replied alleging that the said property was purchased by said John B. Detwiler as agent of said Mary A. Detwiler. Upon the argument and hearing of this cause, it was referred by the court to A. N. Ferguson, Esq., to take testimony, and report what sums have been paid by J. B. Detwiler in his life-time, or by his heirs or legal representatives since his death, for taxes or assessments on lots 3 and 4, in block 256, in Omaha, or improvements thereon or pertaining thereto, and the amount, with legal interest, by which it was found that the sum of $717.84 had been so taxed, assessed, and paid. Subsequently, on March 28, 1888, the cause, which was tried to the court at the September term, 1887, and taken under advisement,came on to be decided, and was found generally upon pleadings and evidence in favor of the plaintiffs; and it was further specially found that Mary A. Detwiler the mother of William L. Detwiler, Mary H. Parkins, Josephine Clinton, Emma De L. Gallagher, and John B. Detwiler died seised of the legal and equitable title of lots 3 and 4, in block 256, in the city of Omaha, as designated and described on the surveyed plat of said city, and that said lots descended to her said children and heirs at law, subject to the curtesy right of her husband, William H. Detwiler; that each of her said children inherited from her the undivided one-fifth of said lots subject to the life-estate or tenancy by the curtesy of the said William H. Detwiler, and that her said children were tenants in common of said real estate. And it was further found that in May, 1874, shortly after the death of Mary A. Detwiler, her said children and heirs at law made, executed, and delivered to William H. Detwiler, their father, a joint power of attorney, dated May 29, 1874, recorded October 8, 1874, in Book 17 of Deeds, of the records of said county, on pages 5, 6, and 7, empowering him “to bargain, sell, and convey” the said real estate for them and in their names; that said power of attorney was not obtained by fraud, and was a valid instrument in all respects; that, under this power of attorney, William H. Detwiler, as attorney in fact of the heirs of Mary A. Detwiler, and in the names of four of them, on October 7, 1874, made, executed, and delivered to one of his sons, John B. Detwiler, and one of said heirs, a voluntary conveyance of said real estate, without consideration, which was recorded October 8, 1874, in Book 17 of Deeds, of the records of said county, on page 7; that said attorney in fact had no authority to make such conveyance without consideration under the power guarantied to him; that the grantors of the power were tenants in common of the property, and the attorney undertook to convey to one of them, without consideration, the undivided interest of the others, which was in violation of his authority, and was voidable. And it was further found that the obtaining of the said conveyance was, in contemplation of law, a fraud and cloud upon the title of the plaintiffs and heirs at law of Mary A. Detwiler, deceased, and that they are entitled to the decree of this court adjudging it void. And it was also further found that none of the plaintiffs had actual knowledge of the conveyance having been made by their attorney in fact to their co-tenant until shortly before bringing this suit; and that they are not shown to have come to the knowledge of any facts indicative thereof, until recently, within less than four years before bringing this action; and that the statutes of limitation have not barred the same. And it was also further found that John B. Detwiler, in his life-time, and his estate since his death, have paid taxes and special assessments for improvements pertaining to said real estate, amounting, with interest, to $717.84, as reported by the referee, and that the plaintiffs should pay to the estate of John B. Detwiler, deceased, the undivided three-fifths thereof, amounting to $430.71, which sum...