Fed. Land Bank of Omaha v. Tuma

Citation216 N.W. 186,116 Neb. 99
Decision Date10 November 1927
Docket NumberNo. 24997.,24997.
PartiesFEDERAL LAND BANK OF OMAHA v. TUMA ET AL.
CourtSupreme Court of Nebraska

116 Neb. 99
216 N.W. 186

FEDERAL LAND BANK OF OMAHA
v.
TUMA ET AL.

No. 24997.

Supreme Court of Nebraska.

Nov. 10, 1927.


Syllabus

[216 N.W. 186]

by the Court.

When all the parties interested in a tract of land are before the district court in a partition suit, its judgment in fixing the shaes, directing partition and later confirming a sale of the real estate is final, and the parties thereto, in the absence of fraud upon the face of the proceedings, cannot question the title acquired by a later bona fide purchaser who relied on the proceedings and decree and who was innocent of any fraud or of knowledge of any fraud in the partition proceedings.

A purchaser who deals fairly with guardian has a right to presume that the guardian acts for the benefit of his ward, and such purchaser is neither bound to inquire into the state of the trust nor to be responsible for the guardian's faithful application of the trust money, unless the purchaser knew, or had sufficient information to put him on inquiry, that the guardian was practicing or contemplated a breach of his trust.

The actual knowledge of one who is a guardian and is at the same time an officer of a bank will be imputed to the bank so that the bank cannot in equity, as an innocent purchaser, enforce a mortgage held by it against the estate of the guardian's wards, where the circumstances are such that no one save an innocent purchaser or owner of a lien can enforce it.

Where the interests of wards in an estate have not been properly protected by their guardians and rights of innocent purchasers have intervened so as to cut off some of the rights and interests of such wards, equity will, while preserving the rights of innocent purchasers, restore the wards as nearly as possible to the position they would have occupied had their guardians done their duty in preserving their interests.



Additional Syllabus by Editorial Staff.

Where mother. tenant in common with her children of her deceased husband's land, gave mortgage on her interest therein, and such mortgage was later released to give priority to mortgage in which its debt was merged, on such land executed by her after purchase at illegal partition sale, latter mortgage in hands of holder charged with notice was invalid, and mortgage first given by her should be revived as lien against her interest in land, but not as against children's interest in land or proceeds thereof.


Appeal from District Court, Colfax County; Lightner, Judge.

Action by the Federal Land Bank of Omaha against Agnes Tuma and others. From a decree finding defendant John M. Folda's mortgage null and void and dismissing his cross-petition, he appeals. Reversed with directions.

Good, J., dissenting.

W. B. Sadilek, of Schuyler, and Dolezal, Spear, Mapes & Stevens, of Fremont, for appellant.

E. F. Dougherty and B. B. Oberst, both of Omaha, and John C. Sprecher, of Schuyler, for appellee Federal Land Bank of Omaha.

[216 N.W. 187]


Geo. W. Wertz, of Schuyler, for appellee Stephen Tuma, guardian of Emil Tuma and others.

Heard before GOSS, C. J., and ROSE, DAY, GOOD, THOMPSON, and EBERLY, JJ.

GOSS, C. J.

This is an appeal by John M. Folda, one of the defendants, from the judgment and decree of the district court, finding his mortgage to be null and void and dismissing his cross-petition.

There is not so much dispute as to the facts as to the conclusions to be drawn therefrom. This situation calls for a rather complete and definite statement of the evidence.

Frank Tuma, a resident of Colfax county, died testate on or about October 21, 1918. He left surviving him his widow, Agnes Tuma, and the following children: Stephen Tuma, age 17, Emil Tuma, age 14, Emilie Tuma, age 11, Lumir Tuma, age 10, Lambert Tuma, age 6, and Paulina Tuma, age 4. The widow duly and formally elected under the statute not to take under the will. She administered the estate, and on November 11, 1918, a decree on her final account was entered, assigning to her a homestead interest in the premises, as well as a one-third interest and assigning to each of the children a one-ninth interest in the land, described as the south half of the northwest quarter and the northeast quarter of the northwest quarter of section 29, township 20, in Colfax county, Nebraska. The decree further found that the widow had personally advanced $4,716.42 besides $24 additional court costs for the benefit of the estate and gave her a charge and lien upon said real estate on account thereof. The homestead was free from incumbrance at the time of Frank Tuma's death.

On September 9, 1918, Agnes Tuma executed a mortgage for $5,000 to Frank C. Hrabak, who was a cashier of the Colfax County Bank, located at Howells, Nebraska, on her undivided one-third interest in the 120 acres. There is testimony to the effect that this mortgage was transferred by Hrabak to the bank before the transactions which gave rise to this case; at any rate, the bank became the owner of it. November 30, 1917, Hrabak was appointed guardian of the six minor children and was such guardian until his resignation, tendered on July 16, 1920, was accepted on September 18, 1920, on which day Agnes Tuma was appointed as their guardian. On August 25, 1924, Agnes Tuma was discharged as guardian for the minors, and on the following day Stephen Tuma, who had then become of age, was appointed guardian of his five brothers and sisters. On March 2, 1920, Agnes Tuma gave a mortgage, recorded March 29, 1920, to E. Quesner, for $11,000, on her interest in the 120 acres described and covering also an adjoining 40 acres which she purchased on speculation. This mortgage was released September 25, 1920, the release being recorded October 4, 1920.

On September 13, 1920, by a mortgage recorded September 28, 1920, Agnes Tuma mortgaged for $19,000 to herself as guardian of the minors the 120 acres and the adjoining 40 acres; the records show a release of this mortgage March 1, 1923, the release being recorded five days later. On November 21, 1923, Agnes Tuma gave a mortgage for $1,161.65, which was recorded the next day, in favor of Joseph K. Suchan and Rudolph L. Suchan, covering the 120 acres.

The defendant H. Dey Myers had a judgment lien against Mrs. Tuma in a justice court for $199.99, and the transcript was filed in the district court May 10, 1923.

In February, 1920, Agnes...

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