Reid v. Colby
| Decision Date | 16 May 1889 |
| Parties | WILLIAM H. REID, APPELLEE, v. LEONARD W. COLBY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Gage county. Heard below before BROADY, J.
Judgment of the district court reversed, and finding entered in favor of the plaintiff, in the sum of $ 13,370.32.
Harwood Ames & Kelly, Pemberton & Bush, and C. O. Bates, for appellant, cited: 3 Suth. on Dam. 587, and cases cited in note; Phillips v. Jones, 12 Neb. 213, 215; Munroe v. Pritchett, 50 Am. Dec. 203; Chatam Furnace Co. v. Moffatt, 18 N.E. 169 (Mass.) ; Cooper v. Schlesinger, 111 U.S. 148; Bower v. Fenn, 90 Pa. St 359.
A. Hardy, and A. H. Babcock, for appellee, cited: Babcock v. Libbey, 53 How. Pr. (N. Y.) 255; Starr v. Bennett, 5 Hill, (Id.) 303-306; White v. Seaver, 25 Barb. (Id.) 242; Sawyer v. Prickett, 19 Wall. 146.
The plaintiff commenced his action in the district court of Gage county for the foreclosure of a real estate mortgage executed by L. W. Colby and Alfred Hazlett, together with their wives, to secure the payment of a promissory note executed by them to him for the sum of $ 12,000, with interest at ten per cent per annum, dated March 7, 1884, and payable March 7, 1885.
The plaintiff's petition, after setting forth the execution and delivery of the note and the execution, acknowledgment, delivery, and recording, of the mortgage, contained the statement that, "The defendants have not paid the amount secured by the said mortgage, except the sum of $ 40 on March 24, 1884, and the sum of $ 1,791.15, April 9, 1884, and the further sum of $ 460 April 17, 1884; and there now remains due and unpaid thereon the sum of $ 13,564.47." (February 4, 1888.)
The defendants by their joint answer alleged as follows:
I. They admit that on March 7, 1884, the defendants L. W. Colby and Alfred Hazlett, made and delivered to the plaintiff their promissory note, as set out in plaintiff's petition, and that to secure the payment of the note, they, with the defendants Clara B. Colby and Libbie Hazlett, on the same day executed and delivered to the plaintiffs the mortgage deed in the plaintiff's petition described, which was duly recorded in the county clerk's office; that they have paid on said note, sums amounting to $ 2,291.15; that on or about March 15, 1884, said defendants, L. W. Colby, and Clara his wife, and Alfred Hazlett, and Libbie his wife, executed and delivered to the defendant William H. Kilpatrick, a warranty deed to the mortgaged premises, and that on January 15, 1885, the said Kilpatrick executed and delivered to the said Colby, a warranty deed to the mortgaged premises; and they deny each and every allegation in said petition except the matters and things expressly admitted.
II. That on March 7, 1884, at the time of the execution of the mortgage set forth in the plaintiff's petition, the plaintiff, William H. Reid, was indebted to the defendants L. W. Colby and Alfred Hazlett, in the sum of $ 5,000 for professional services and legal expenses in the prosecution of the State of Nebraska v. William H. Reid; that for the purpose of liquidating said indebtedness, and inducing the defendants Colby & Hazlett and William H. Kilpatrick to purchase said mortgaged premises, and a large amount of personal property in connection therewith, and to induce the defendant William H. Kilpatrick to advance money sufficient to pay the indebtedness to Colby & Hazlett, and to pay other accounts of costs and indebtedness to other parties then required to be paid by the plaintiff, he represented and made the following statements in regard to the premises and personal property:
That he was the owner in fee of the mortgaged premises; that the same were free and clear of all liens and incumbrances; and that the same was in his possession; and that he had lawful authority to sell and convey the same, and deliver possession thereof; and that it was of the value of $ 14,000; and that he was the owner and was in possession of a large amount of personal property on said premises and had good right and lawful authority to sell the same, to wit: ten head of horses, twenty head of cows, thirty three-year-old steers twenty two-year-old cattle, twelve yearling calves, sixty head of hogs, three lumber wagons, one spring wagon, two thousand bushels of corn in crib and field, three sets of double harness, one harvester, one corn planter, two harrows, one hay rake, three plows, one stove, one table and five chairs, and a large amount of household property, cooking utensils, and other personal property, of the value of $ 4,000. Whereas in fact the plaintiff was not the owner, nor was he in possession of said property, nor was it of the value of $ 4,000; that said plaintiff was the owner and in possession of only the following property, of the value not exceeding $ 1,000, to wit, ten hogs, ten cows, four horses, twelve two-year-olds, ten yearlings, two calves, one spring wagon, three plows, two sets of harness, one table, five chairs, one cook stove, six hundred bushels of corn; and said mortgaged premises were not in the plaintiff's possession, but were in the possession and control of James M. Reid, George Reid, William Reid, Sarah Plucknett, and others, who had liens upon and claimed to own and control the same; and there was also a large amount of taxes due, and a lien upon said premises, all of which the plaintiff well knew, and of which the defendants had no knowledge whatsoever; that relying entirely upon said representations, and without having seen said property, the defendant agreed with the plaintiff as follows: To purchase said mortgaged premises and personal property so represented to be owned by plaintiff, at the sum of $ 16,000, the same to be conveyed to the defendants Colby & Hazlett and by them conveyed to the defendant William H. Kilpatrick, the compensation thereof to be as follows: $ 5,000 in attorneys' fees and expenses in full of the indebtedness of the plaintiff to Colby & Hazlett, and the balance of the $ 11,000 was to be placed in the shape of a note secured by a mortgage on said premises, due in one year. And it was also agreed that the further sum or sums amounting to $ 2,291.15 for costs, and other indebtedness of the plaintiff, should be paid from time to time as required, and the amount when so paid endorsed on the note of $ 11,000; that pursuant to said agreement, the plaintiff executed and delivered to the defendants, Colby & Hazlett, a warranty deed of said mortgaged premises, and the said defendants executed and delivered to William H. Kilpatrick their warranty deed of said premises, and a bill of sale of said personal property, and said W. H. Kilpatrick paid to Colby & Hazlett the sum of $ 4,000, and for costs and other indebtedness of the plaintiff, amounts aggregating $ 2,291.15, which were indorsed on the notes set forth in plaintiff's petition; that said Colby & Hazlett receipted said $ 5,000 indebtedness in full, and by a mistake in figuring executed and delivered the said note and mortgage described in plaintiffs' petition for $ 12,000, when the same should have been for $ 11,000, in accordance with the terms of said agreement; and after the execution and delivery of all the papers connected therewith, the defendants discovered said mistake in said note; and that thereafter the defendants learned for the first time that the plaintiff was not the owner and in possession of the said personal property and mortgaged premises purchased, and that the representations in regard thereto were false; that the said James M. Reid and others were in possession of said personal property and premises under a lease and claim of ownership from the plaintiff, and on the 24th day of March, 1884, he brought suit in the district court against the defendant W. H. Kilpatrick, and others, and obtained an order enjoining and restraining said defendant from interfering with his possession and ownership in any way; that the defendant Kilpatrick brought an action in replevin in said district court against the said J. M. Reid and others, to recover the possession of the said personal property, but was unable to obtain but a small portion thereof; that afterwards by the consent of the plaintiff the matters in difference between James M. Reid and the plaintiff, and these defendants, were compromised and settled, whereby the said premises were left in the occupancy and possession of James M. Reid and the plaintiff's other children for the period of two years, whereby the defendants lost in the use and rents thereof, to the defendants' damage of the amount of $ 2,000, but the personal property received by and turned over to the defendants by plaintiff amounted in value only to the sum of $ 1,000, and was $ 3,000 less than that represented by the plaintiff as aforesaid; that the defendants necessarily expended large sums of money in costs and litigation in endeavoring to recover possession, and were put to great trouble, expense, and loss of time, in that behalf, to their damage in the sum of $ 1,500; that they paid the taxes on said premises for the years 1883 and 1884, amounting to the sum of $ 150, which were a lien upon said mortgaged premises, and which should have been paid by said plaintiff; that by reason thereof the defendants have been damaged and are entitled to recover of the plaintiff the sum of $ 6,650, which, with the mistake on said note and mortgage of $ 1,000, amounting to $ 7,650, the defendants are entitled to have deducted from and set off against the mortgage, note, and debt, sued upon in the plaintiff's petition; that the defendants have requested the plaintiff at various times to make such deduction, which he has failed and refused to do; that the defendants have been ready...
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