Levara v. McNeny

• Decision Date: 23 March 1905
• Docket Number: 13,274
• Citation: 102 N.W. 1042,73 Neb. 414
• Parties: ROSA LEVARA ET AL., APPELLANTS, v. BERNARD MCNENY ET AL., APPELLEES
• Court: Nebraska Supreme Court

102 N.W. 1042

73 Neb. 414

ROSA LEVARA ET AL., APPELLANTS, v. BERNARD MCNENY ET AL., APPELLEES

No. 13,274

Supreme Court of Nebraska

March 23, 1905

APPEAL from the district court for Webster county: ED L. ADAMS JUDGE. Reversed with directions.

Judgment of the district court reversed at the costs of the appellees, and cause remanded, with directions.

F. A Sweezy, A. D. Ranney and Tibbets Bros. & Morey, for appellants.

Bernard McNeny and R. T. Potter, pro se.

OPINION

BARNES, J.

This case when it was before us the first time was heard by department No. 2 of the commission, and in an unofficial opinion written by Commissioner ALBERT it was held that the guardian's deed, which purported to convey the interest of the minor heirs of Wenzel Levara in the land in question to the defendant McNeny, was void, and that said heirs were entitled to recover of the appellees four-sevenths of said estate. Levara v. McNeny, 5 Neb. Unoff. 318. A rehearing was granted on the application of the appellants and the case has been reargued before the court. On the re-argument it was contended that the deeds made by the adult plaintiffs should also have been set aside, and they should have been allowed to recover the land conveyed thereby to the defendant McNeny, one-half of which it appears was at once conveyed by him to defendant Potter, who paid that proportion of the original purchase price to the appellants. We are unable to make a clearer or more concise statement of the facts than that contained in the opinion of the commissioner, and so no other statement will be attempted.

The main contention of the appellants is that the acts of the defendants, and especially those of defendant Potter, were fraudulent, and that appellants were thereby induced to sell the land to McNeny; while the appellees insist that in the performance of those acts Potter exercised the utmost honesty and good faith. The trial court so found, and refused for that reason to grant the appellants any relief. There appears to be little, if any, conflict in the evidence as to what took place leading up to the guardian's sale of the land to McNeny, and the real question presented is practically one of law. The record shows that the appellants employed one William Sweet of Friendship, Wisconsin, to look after the matter for them; that he wrote to the defendant Potter, an attorney at Red Cloud, in Webster county, this state, where the land was situated, stating, in substance, that the appellants wished to get what they could for it, and inquiring as to its value, or what it would bring in the market. Potter answered Sweet's letter, stating, among other things, that it would be necessary for a guardian to be appointed for the minor heirs, and to take the proper steps to have the land sold by such guardian; concluding his letter as follows: "Did Wenzel Levara leave any debts? I find that there is a large amount of taxes due on this land, and it will be necessary to do something at once. The purchaser at tax sale is now entitled to a tax deed to the premises. I have not seen the land, but have been informed that it is worth not less than $ 500 or $ 600. Give me all the facts as soon as convenient." Shortly afterwards Potter wrote Sweet another letter, in which he said: "Replying to yours of the 5th inst. relative to the Levara matter, I think you had better procure the appointment of a guardian for the minor heirs in your county. You can send me an authenticated copy of the appointment, and that will be our authority for the proceedings to sell land in this state. If Levara left no debts, it may not be necessary for administration. When did Levara die? Proceedings to foreclose the tax lien against this land were commenced in our district court on the 2d inst. The petition claims due on taxes the sum of $ 201.68; delinquent taxes draw interest at the rate of twenty per cent. per annum, which accounts for the large sum due, for no taxes have been paid for ten years. I would advise that you secure appointment of guardian as soon as possible, and we can then sell the land subject to the taxes and in the meantime I will see that no decree is entered in the foreclosure proceedings. Please advise me how long it will take to secure appointment of a guardian?" On November 25, 1901, Potter again wrote Sweet as follows: "What progress are you making in the Levara matter? I have a client who will pay $ 500 cash for the interest of the heirs in the land; pay all the taxes, and take his chances with Stephani on his claim of title to the land by adverse possession. If they wish to dispose of the land, here is an opportunity, but my client must know at once. If your clients wish to accept this offer I will forward deeds for their signature at once. As I wrote you in my last letter, I do not think there is anything to the claim Stephani makes of having title to this land, and the heirs can recover possession by bringing an ejectment suit. Our district court convenes next week, the tax case will come up at that time, and I can stand the tax matter off. Will write you as soon as court adjourns." Potter's next letter to Sweet reads as follows: "Replying to your favor of the 27th inst., a general guardian is what should be appointed in your county for the minor heirs of Wenzel Levara. It will not be necessary to have a guardian appointed in this county. All that is needed is that a certified copy of the appointment of the guardian appointed in your county be sent here, and proceedings can then be commenced to sell the land. As to the tax proceedings: This is a regular foreclosure proceeding, and will cut off the minor heirs just the same as other defendants. I will appear as attorney for the defendants and secure a continuance of the case, if it can be done. The land has increased some in value since it was purchased by Levara. The record shows that he paid $ 600 for it. As my client is to assume the payment of the taxes the land will cost him over $...