Horton v. Lee

• Decision Date: 06 April 1900
• Citation: 106 Wis. 439,82 N.W. 360
• Parties: HORTON v. LEE.
• Court: Wisconsin Supreme Court

106 Wis. 439

82 N.W. 360

HORTON

v.LEE.

Supreme Court of Wisconsin.

April 6, 1900.

Appeal from circuit court, Jefferson county; B. F. Dunwiddie, Judge.

Action by Chester Horton against Peter Lee to have set aside a conveyance of land, on the ground of fraud. From a judgment for plaintiff, defendant appeals. Affirmed.

Action to avoid a deed for fraud. The issues raised by the pleadings are indicated in findings and conclusions, in substance as follows: Plaintiff, when the transactions occurred leading up to and inclusive of the particular act in controversy, was a weak-minded man about 50 years of age to the knowledge of defendant, who had been on intimate terms with him for many years. August 27, 1898, plaintiff owned land in Dane county, Wis., of the value of about $1,800, and defendant owned land in Adams county, Wis., obtained about one year before at a cost of about $17 and worth not to exceed $400. In the spring of 1898 plaintiff, at defendant's request, accompanied him to Madison, Wis., and on the way described his Adams county land as suitable for a good farm, stating that he had refused $3,000 for it. On arriving at Madison defendant went to a saloon, ostensibly to see a Miss Jones to inquire about her brother, inducing plaintiff to accompany him. Defendant took the plaintiff, by a side door of the saloon building, into a sitting room where a woman was found and introduced by defendant to plaintiff as Miss Jones. Plaintiff had never seen the woman before. Soon after the introduction defendant went away, promising to return soon. Upon plaintiff and Miss Jones being left alone, she began to talk about defendant's Adams county land, stating, among other things, that a railroad was going to be built through it, that a station would be located thereon, that her brother, a railway superintendent, wanted to obtain the land, knowing of its prospective value, and that if plaintiff would purchase it for her and her brother for $3,000, she would pay him $50 for his services, and suggested that he obtain the land by trading his Dane county land for it. Thereafter defendant again caused plaintiff to accompany him to see Miss Jones, when she urged plaintiff anew to trade his Dane county land for the Adams county land, saying she and her brother would give $3,500 for the latter if plaintiff would obtain it for them. Subsequent to plaintiff's first meeting with Miss Jones she wrote him five letters, urging him to obtain defendant's land for her and her brother, and offering to take it off his hands as indicated. Some of the letters purported to have been written at room 3, Capitol House, Madison, at which place and time there was no person by the name of Miss Jones. One letter was mailed at defendant's post-office address. During the period mentioned a man pretending to be the brother of Miss Jones visited plaintiff and urged him to obtain defendant's Adams county land, holding out inducements like those presented by his so-called sister. By the influences on plaintiff, indicated, the said statements made to him being relied upon as true, he was induced to trade and convey his land and 25 bushels of rye to defendant for the Adams county land. The statements made, as aforesaid, to induce plaintiff to trade his land to defendant, were false, fraudulent, and a part of a fraudulent scheme entered upon and carried out by defendant, by the aid of the so-called Miss Jones and her so-called brother, all acting in concert by defendant's procurement, for the purpose of defrauding plaintiff out of his land by obtaining it for the Adams county land. Plaintiff did not discover or appreciate the fraud perpetrated upon him by defendant, by aid of his said confederates, till shortly before the commencement of this action. Plaintiff is entitled to judgment annulling his deed of the Dane county land, upon condition of his reconveying to defendant the Adams county land and paying into court, for the latter's benefit, his expenditures for taxes on the Dane county land with interest thereon from December 28, 1898.

In accordance with the foregoing judgment was rendered for plaintiff, from which this appeal was taken.

Clancey, Loverud & Gilman, for appellant.

Rufus B. Smith, for respondent.

MARSHALL, J. (after stating the facts).

The findings of fact cannot be disturbed under the familiar rule governing the review, on appeal, of cases tried without a jury. It is useless to incumber the records here by a discussion of the evidence which leads to that conclusion, and which, to our minds, tends strongly to prove the existence of every material fact necessary to support the judgment.

True, on the vital question of whether the alleged confederates of defendant were such in fact there is no direct evidence, but that is not material. Fraud is generally worked by secret ways so as to prevent the existence of direct evidence of it if possible. It would often succeed where failure happens if it were not for the salutary principle that facts may as well be established by circumstantial as by direct evidence. Where circumstances are satisfactorily proved, pointing so strongly to the existence of an act essential to actionable fraud as to warrant the conclusion that it clearly characterized the transaction challenged, such act stands proved for the purpose of the controversy, though there may not be a particle of direct evidence in regard to it.

It is confidently contended by appellant's counsel that respondent's conduct in trading off his Dane county land, worth $1,800, for land in a distant county, of comparatively little value, without any personal knowledge or attempt to gain any personal knowledge thereof, is explained by evidence tending to show that he was anxious to place the Dane county land beyond the reach of his sister whom he feared would make some claim on account of it. That can hardly be said to be a reasonable explanation of respondent's actions. It might stand as an explanation of his desire to dispose of the Dane county land, but not of his willingness to practically give it away. If he wanted to place the land beyond the reach of his sister, it would be unreasonable to say that he was willing to do that regardless of obtaining an equivalent for it.

The circumstance referred to does not furnish any explanation for the failure of respondent to visit the Adams county land to find out whether it was a fair equivalent for the Dane county land,--none whatever. There is no reasonable theory disclosed by the evidence to explain that failure, except that respondent was weak-minded and utterly incompetent to do business, or he was made to believe, by appellant and his confederates, that the Adams county land was valuable for a farm, and specially valuable to an extent much in excess of the Dane county land because it was in the pathway of a located railway about to be constructed, that parties actually stood ready to take it for over $3,500, and that appellant and such confederates purposely imposed upon respondent to prevent his personally examining the land, and accomplished such purpose, and in that way consummated the fraud alleged. That theory was adopted by the trial court, and certainly there is no clear preponderance of the evidence against such theory.

But it is said that, conceding the findings of fact to be correct, they disclose at most a mere false opinion as to the value of the Adams county land, a promise to do something in the future without any intention to redeem the promise, and representations as to other future matters, and that such misrepresentations, if they can be called such, were not of material facts, and therefore will not void a sale...