Krelle v. Bowen

• Decision Date: 21 February 1935
• Docket Number: 29176.
• Citation: 259 N.W. 48,128 Neb. 418
• Parties: KRELLE v. BOWEN ET AL.
• Court: Nebraska Supreme Court

259 N.W. 48

128 Neb. 418

KRELLE v. BOWEN ET AL.

No. 29176.

Supreme Court of Nebraska.

February 21, 1935

Syllabus by the Court.

1. " Fraud is never presumed, but must be clearly proved in order to entitle a party to relief on the ground that it has been practiced on him." Davidson v. Crosby, 49 Neb. 60, 68 N.W. 338.

2. " While the law requires this court, in determining an appeal in an equity action involving questions of fact, to reach an independent conclusion without reference to the findings of the district court, this court will, in determining the weight of the evidence, where there is an irreconcilable conflict therein on a material issue, consider the fact that the trial court observed the witnesses and their manner of testifying." Johnson v Erickson, 110 Neb. 511, 194 N.W. 670.

Appeal from District Court, Burt County; Dineen, Judge.

Action by Charles F. Krelle against Roy Bowen and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Carroll O. Stauffer, of Oakland, and John A. McKenzie, of Omaha, for appellant.

W. M Hopewell, of Tekamah, for appellees.

Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE, and CARTER, JJ., and CHASE, District Judge.

CARTER, Justice.

This is an action brought by appellant in the district court for Burt county to set aside an assignment of a judgment which had been obtained by the appellant against his son C. F. Krelle, Jr., and Hugo Erickson in the amount of $2,231.20. At the time of the making of the assignment in question, an execution had been issued and levied on the undivided one-half interest of Erickson in 406 acres of farm land in Burt county and the land was being advertised for sale. The undisputed evidence was that it was worth $70 an acre and that the undivided one-half interest of Erickson was incumbered, including the judgment heretofore mentioned, to the extent of $6,800.

The record discloses that on September 7, 1933, the appellees Roy Bowen and Luther A. McDonald and their attorney, Orville Chatt, called at the law offices of Fischer & Fischer in Omaha for the purpose of purchasing the judgment above mentioned; Fischer & Fischer having been the attorneys for appellant in procuring the judgment. It appears that Krelle, Sr., was confined to his home because of illness. William Krelle, another son of appellant who resides in Omaha, was called to the office where Chatt made an offer of $1,100 for the judgment. The Fischers informed them that they did not believe that Krelle, Sr., would accept the offer. However, William Krelle and Herbert Fischer went to the home of Krelle, Sr., and talked the matter over with him. They were informed by Krelle, Sr., that he wanted $1,500 for the judgment, but for them to do the best they could. On their return to the office, they offered to sell the judgment for $1,250, which was refused, and they finally accepted an offer of $1,119.50 and the assignment was then made. On September 25, 1933, this suit was filed to set aside the assignment because of alleged fraudulent representations made to the Fischers and William Krelle, and which were claimed to have been communicated to appellant, as to the condition of the land and improvements on which the judgment was a lien. The trial court found for the defendants below and appellant brings this appeal.

Appellant was 78 years of age at the time the assignment was made and testified that he was not familiar with land values and that he had never been engaged in farming. The Fischers and William Krelle testified, in substance, that Bowen stated that he was a close relative of Erickson, one of the judgment debtors, and that they wanted to purchase the judgment and hold it for Erickson so that he could save the farm; that the outbuildings were run down and needed paint; that the farm had not been properly taken care of and was all run down, and that it would not bring over $1,000 above the mortgage. William Krelle and the Fischers testified that they believed the statements made and relied upon them. The testimony is that all of the alleged fraudulent statements were conveyed to appellant and relied on by him.

The testimony of Bowen, McDonald and Chatt is that Bowen was a first cousin of Erickson's wife, that the...