Mudra v. Groeling
| Decision Date | 25 September 1911 |
| Docket Number | 16,521 |
| Citation | 132 N.W. 389,89 Neb. 829 |
| Parties | EMIL MUDRA ET AL., APPELLANTS, v. HERMAN GROELING, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Knox county: ANSON A. WELCH JUDGE.Affirmed.
AFFIRMED.
J. F Green and W. A. Meserve, for appellants.
J. H Berryman and Calvin Keller, contra.
Plaintiffs brought suit in the district court for Knox county to set aside a deed to their homestead, consisting of 160 acres of land in said county, and to quiet their title thereto, and from a decree of the district court dismissing their suit and quieting defendant's title to the land in controversy they prosecute this appeal.
It is not disputed by plaintiffs that on January 22, 1909, they signed the deed in controversy, but they contend, first, that at the time they signed the deed they thought it was a mortgage; and, second, that T. A. Drayton, who took the acknowledgment, had such an interest in the transaction as disqualified him from taking the same.In other words, that the deed was never acknowledged in accordance with the statutes of this state relating to the conveyance of a homestead.The latter point is the only one argued in plaintiffs' brief, and hence is the only one that will be considered here.Owing to the unfortunate condition in which the decree of the district court leaves the plaintiffs, we have examined this case with great care.The writer has twice carefully read the entire record.It would serve no good purpose, and would unnecessarily extend this opinion, to set out the evidence of the respective parties in detail.We think a clear preponderance of the evidence shows that on January 20, 1909, plaintiffEmil Mudra was to all intents and purposes a bankrupt.He was heavily indebted to two banks at Orchard, Nebraska (which, for brevity's sake, we will designate as the Farmers Bank and Citizens Bank, respectively), and to certain individuals who were officers and stockholders in those banks.The only security held by the banks consisted of chattel mortgages upon the personal property of Emil.He was also indebted to the defendant in the sum of approximately $ 900, a portion of which was also secured by a chattel mortgage.On the day named a representative of each of the two banks together visited the farm of the plaintiffs for the purpose of checking up their several chattel mortgages and ascertaining whether or not plaintiffs actually had the live stock purporting to be covered thereby.They were unable to find all of the stock upon the farm, but were told by Emil that something like 30 head of the stock was at another place about 15 miles distant.The representatives of the banks had obtained an abstract from the county clerk of the chattel mortgages which had been given by plaintiffs.Their examination satisfied them that their security was insufficient, also that there would be some difficulty in determining the rights of the several mortgagees on account of the careless manner in which plaintiff Emil had listed the stock when giving the various mortgages.While they were at the farm the question of a public sale of all of plaintiffs' personal property was discussed.Plaintiff Emil says the sale was suggested by the representatives of the banks, but they say that it was suggested by plaintiff.However that may be, the representatives of the banks insisted upon a new chattel mortgage, running jointly to a representative of each of the two banks, covering the entire stock.Such a chattel mortgage was drawn, and signed by plaintiff Emil.It was then agreed that a public sale should be held in the near future and all of the property sold; that representatives of the two banks should act as clerks at that sale and handle and distribute the proceeds among the creditors pro rata.After the chattel mortgage had been signed, the representatives of the banks prepared a mortgage upon the homestead, subject to two prior mortgages, one for $ 1,600 and the other for about $ 200, as additional security to their loans.Plaintiff Emil signed this mortgage, but Mrs. Mudra refused to join, insisting that the personal property ought to pay the banks what was due them.Thereupon the bank representatives started home.On their way they stopped at the home of defendant, whose farm adjoined that of the plaintiffs, where they remained for supper.During their interview with defendantthey asked him how much of a claim he had against plaintiffs.Defendant was unable to state the exact amount, but gave it approximately.The bank representatives then asked defendant if plaintiff had 30 head of stock at another place 15 miles distant.Defendant answered to the effect that it was possible plaintiff had such stock, but that he had never heard of it, and doubted his having the same.It was then agreed between the representatives of the bank and defendant that, so far as they could consistently do so, they would act together in trying to protect their mutual interests.On the next morning, January 21, defendant appeared at the home of plaintiffs, and said to plaintiff Emil: "You're a deuce of a fellow to claim to have 28 or 30 head of cattle out north; you are making things worse in place of better, and they are talking about sending you over the road."Defendant also said that he would like to help them out if there was any way he could do it.Mrs Mudra testified that defendant said he would lend them $ 800 or $ 1,000 and take a second mortgage on their homestead.Defendant denies this, and says his offer was to purchase the farm for $ 4,000, with an agreement that they might have it back any time within a year if they would repay him his money with interest; that Mrs. Mudra was not satisfied with one year, but wanted to make it three years; that he objected to three years as being too long a time, but finally agreed to give them two years; that he told plaintiffs to think the matter over and telephone him that evening as to their decision, and, if they decided to accept his offer, to come over the next morning and they would go to town together and close the matter up; that some time that evening some one from plaintiffs' home telephoned to some member of defendant's family that they had decided to accept his offer, and would be over the next morning to go to town with him; that on the next morning, January 22, plaintiffs appeared at the home of defendant, and informed him that they were ready to go to town to carry out the arrangement; that he got into the buggy with them, and they started for Orchard; that he rode with them about two-thirds of the way when they were overtaken by a neighbor, and, on account of the crowded condition of the buggy in which they were riding, he rode the rest of the way with the neighbor; that while they were all riding together plaintiff Emil said to him, "Now, being as I have sold the place, I don't want to sell all of my personal property; I will keep out several of the best horses and some cows," evidently under the supposition that the proceeds of the sale of the land would reduce his indebtedness to such an extent that it would not take all of the personal property to pay the remainder.Plaintiffs deny that Emil made this statement.However that may be, when they arrived at Orchard, defendant went to the Farmers Bank, and told the cashier that he had bought Mudra's farm; that they had come to town for the purpose of executing the deed; and that under his arrangement with Mudra he was to turn over all of the cash coming to the Mudras from this sale to Mudra's creditors.Mudra went to the Citizens Bank, and made substantially the same statement to the cashier of that institution.Mr. Drayton, the cashier, then telephoned to the Farmers Bank that the Mudras were there, and for them to come over.Thereupon, the cashier of the Farmers Bank and defendant went to the Citizens Bank, where matters were talked over by the cashier of the Farmers Bank, the president and cashier of the Citizens Bank, and the Mudras.Mr. Thornton of the Farmers Bank prepared a deed to the land from the Mudras to defendant.The deed was signed by both Mr. and Mrs. Mudra, and the acknowledgment taken by T. A. Drayton, cashier of the Citizens Bank.There is some conflict in the evidence as to whether or not the deed was read to the Mudras, but we think a clear preponderance of the evidence shows that, while the entire deed was not read...
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