Gnuse v. Garrett
| Decision Date | 07 June 1935 |
| Docket Number | 29237. |
| Citation | 261 N.W. 143,129 Neb. 265 |
| Parties | GNUSE ET AL. v. GARRETT ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
Where owners of land enter into a contract to sell it, execute and entrust to the purchasers a deed therefor, and sue for a cancelation of the conveyance for fraud inducing the sale the return of any part of the purchase price received by grantors should be required in a proper case as a condition of such relief, under the maxim that " He who seeks equity must do equity."
Appeal from District Court, Washington County; Sears, Judge.
Action by Amelia Gnuse and another against Melvin C. Garrett, Beach Hinman, and others. From the judgment, Melvin C. Garrett and another appeal, and Beach Hinman and another cross-appeal.
Judgment reversed, and cause remanded, with directions.
Abbott, Dunlap & Corbett, of Fremont, for appellants.
Courtright, Sidner, Lee & Gunderson, of Fremont, for appellees Gnuse, and others.
E. L Mahlin, of Fremont, for appellees Hinman and others.
Heard before GOSS, C. J., ROSE, DAY, PAINE, and CARTER, JJ., and LOVEL S. HASTINGS and LIGHTNER, District Judges.
This is a suit in equity by Amelia Gnuse and August Gnuse, plaintiffs, to cancel a deed purporting to convey from them to Melvin G. Garrett and Elsie Garrett, defendants, the legal title to 260 acres of land in Washington county on the ground that the deed was procured by fraudulent misrepresentations upon which grantors relied. The deed was dated June 13, 1932, and the land was then encumbered by mortgage to the extent of $19,050.46. Plaintiffs alleged the deed was procured by misrepresentations to the effect that plaintiffs would realize from the transactions $500 at the time and approximately $3,000 in 30 days. Elements of enticing fraud charged were a promise to keep the deed off the record for a time; an option permitting plaintiffs to redeem the land and resell it at a profit; a lease of premises as a condition of granting plaintiffs the right to remain in possession. The deed included plaintiffs' homestead of 160 acres and was void to that extent because it was acknowledged before Beach Hinman, a notary public, who had an undisclosed interest in the conveyance.
The Garretts, who were named in the deed as grantees, denied the alleged misrepresentations imputed to them, admitted Hinman had an interest in the conveyance, and alleged consummation of the purchase, payment of $1,150 to plaintiffs, delivery of the deed and estoppel of grantors to question its validity.
On motion of grantees, Beach Hinman and Margaret Hinman, his wife, were brought into the case as additional defendants having a property interest involved in the litigation. They first disclaimed any interest in the land de scribed in the deed, but later applied for leave to withdraw their disclaimer and plead by answer an interest in the subject-matter of the conveyance.
The facts pleaded by grantees in defense were put in issue by a...
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