Kleeman v. Peltzer
| Decision Date | 31 March 1885 |
| Citation | 22 N.W. 793,17 Neb. 381 |
| Parties | FREDERIKA KLEEMAN, APPELLEE, v. SOPHIA PELTZER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Dodge county. Heard below before POST, J.
AFFIRMED.
E. F Gray, for appellant.
W. H Munger, for appellee.
It appears from the record that the plaintiff and defendant are mother and daughter; that on and prior to the 17th day of April, 1882, the plaintiff was the owner of a farm, consisting of two hundred and eighty acres of land. She was a widow, over sixty years of age; had raised a family consisting of eight daughters and one son, all of whom were married. The defendant, with her husband, resided on the said farm of the plaintiff as renters from year to year. The plaintiff sometimes resided with the defendant and her husband on the farm, and had been so residing for two or three months at the time of the transactions hereinafter mentioned; that on the day first above mentioned the plaintiff executed to the defendant two warranty deeds, by one of which, for the expressed consideration of two thousand dollars, she conveyed to her the north half of the east half (sic) of the north-east quarter of section 13, in township 19, in range 5 east; also the west half of the north-west quarter of section 18, in township 19, in range 6 east of the sixth principal meridian, containing in all one hundred and twenty acres; by the virtue of which she conveyed to her, for the expressed consideration of sixteen hundred dollars, the east half of the north-west quarter and the west half of the north-east quarter of section 13, in township 19, north of range 5 east of the sixth principal meridian, containing 160 acres, more or less, which land as conveyed by said two deeds constituted the farm hereinbefore mentioned.
That on the same day, and as a part of the same transaction, the said defendant, together with her husband, William Peltzer, executed and delivered to the plaintiff a mortgage, wherein and whereby for the expressed consideration of two thousand dollars they granted and mortgaged to her, the east half of the north-west quarter and the west half of the north-east quarter of section 13, in township 19 north, of range 5 east of the sixth principal meridian, containing one hundred and sixty acres, according to government surveys, with the following proviso: "Provided always and these presents are upon this condition, that, whereas, the said Frederika Kleeman has this day executed a warranty deed on the above described property to Sophia Peltzer, now if the said Sophia Peltzer shall pay one-third of all the crops raised on the above described land, and on the north half of the east half of the north-east quarter of section thirteen, township number nineteen north, of range five east, and the west half of the north-west quarter of section number eighteen, in township number nineteen north, of range number five east, and also shall, after the death of Frederika Kleeman, pay to the children of Frederika Kleeman the sum of sixteen hundred dollars, in equal shares, to the following named children, to-wit: Bertha, Frederika, Johanna, Wilhelmina, Louisa, and Augusta; it is expressly agreed and understood by and between the parties hereto that in case any of the above described provisions is not complied with, then this mortgage shall at once become due and payable and this mortgage absolute." * * *
That on the same day and, also as a part of the same transaction, Bernhart Kleeman, son of the plaintiff, and brother of the defendant, executed, acknowledged, and delivered, so that the same was placed on record, a receipt of which the following is a copy: Signed and witnessed.
This action was commenced on the 4th day of August, 1883, for the purpose of recovering the title and possession of the said real estate by the said Frederika Kleeman from the said Sophia Peltzer, and of canceling the said conveyances.
The plaintiff in and by her petition alleges that at the time of executing the said conveyances she was living with the defendant, and had been for some time previous. That at that time and for some time previous thereto, one of her sons, to-wit: Bernhart Kleeman, the brother of defendant, had been having trouble with his wife. That the defendant on said 17th day of April, 1882, and at various times prior thereto, represented and stated to plaintiff that plaintiff would lose the said above described land by reason of the trouble which was existing between her son and his wife, unless she parted with the legal title to said land. That plaintiff was at that time sixty-six years old, and was unable to understand business and legal matters. That relying upon the statements so made by her said daughter, the defendant herein, and believing the same to be true, the plaintiff made said deeds above mentioned to defendant, conveying the legal title to said lands and tenements above described. That said deeds were so made to defendant at the repeated request of said defendant, and without any consideration whatever.
That the said representations and statements so made as aforesaid by said defendant to plaintiff were false and untrue, and made for the purpose of obtaining the title to said lands, and thereby defrauding the plaintiff. That said lands were at the time of the executing of said deeds as aforesaid of the value of eight thousand dollars, and are of as great value at this time.
And that at the time of making said deeds of conveyance as aforesaid, the plaintiff was not indebted to any person or persons whomsoever, and had no creditors, and is not now indebted to any person or persons, and has not been indebted to any person or persons at any time since said 17th day of April, 1882. That plaintiff had requested the defendant to reconvey to her the said lands, but she has refused, etc.
The defendant, in and by her answer in said case,...
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