Ish v. Finlay
| Decision Date | 07 April 1892 |
| Citation | 51 N.W. 1031,34 Neb. 419 |
| Parties | MARTHA M. ISH, APPELLEE, v. J. B FINLAY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county. Heard below before WAKELEY, J.
AFFIRMED.
E. W Simeral, W. A. Redick, and J. T. Cathers, for appellant.
Kennedy & Gilbert, contra.
On the 3d day of September, 1887, plaintiff and appellee Martha M Ish, as guardian of James C. Ish, a minor, in pursuance of a license granted to her by one of the judges of the district court of Douglas county, sold at public auction to appellant for the sum of $ 8,400 the following real estate, owned by said minor and situate in said county, to-wit: Beginning at a point 2,504 3/4 feet north of the southeast corner of the west half of the southwest quarter of section 10, in township 15 north, range 13 east, thence north 135 1/4 feet to the north line of said quarter section, thence west 325 feet thence south 135 1/4 feet, thence east 325 feet to the place of beginning, containing one acre of land, more or less. One-third of the purchase money was paid in cash, and the remaining two-thirds was to be secured by mortgage upon the property. Subsequently the sale was reported to and confirmed by said court, and appellee executed and delivered a deed to the appellant of said premises. To secure the balance of the purchase price the defendant on the 22d day of September, 1887, executed and delivered to plaintiff, as such guardian, his two promissory notes, each for the sum of $ 2,800, with interest at eight per cent, due in one and two years, respectively, which notes were secured by a mortgage on the above described real estate. The defendant having failed to pay said notes at maturity, this suit was brought to foreclose the mortgage.
The defendant filed an answer alleging, in effect, that prior to the granting of the license to said guardian to sell said land, about one-third of the premises had been condemned by the city of Omaha for streets, which fact said guardian fraudulently concealed from defendant, yet she sold the entire tract, including the portion so appropriated by the city for streets; that plaintiff falsely and fraudulently represented that said premises contained one acre or ground, while, in fact, the quantity was one-third less; that defendant made such purchase under a mistake and misconception as to the boundaries and quantity of said property.
The plaintiff replied, denying all allegations of fraud. The court found that there were no fraudulent representations nor concealment upon the part of the plaintiff relative to the condition of the property at the time of the sale, and a decree of foreclosure was entered in favor of the plaintiff for the full amount of the notes, which the mortgage was given to secure.
It is urged that the findings of the district court are not sustained by the evidence. The testimony is not voluminous.
There is no dispute that prior to the guardian's sale the city authorities of Omaha extended Twentieth street on the east and Locust street on the north of the tract purchased by appellant, condemning for that purpose the east thirty-three feet and the north thirty-three feet of the same; that it contained a fraction over an acre, including the portion taken for streets.
John B Finley testified, in...
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