Roberts v. Swearingen

• Decision Date: 11 April 1879
• Parties: CHARLES ROBERTS, APPELLEE, v. E. P. SWEARINGEN, APPELLANT
• Court: Nebraska Supreme Court

1 N.W. 305

8 Neb. 363

CHARLES ROBERTS, APPELLEE, v. E. P. SWEARINGEN, APPELLANT

Supreme Court of Nebraska

April 11, 1879

APPEAL by defendant from a decree rendered against him in the Polk county district court. The facts are set forth in the opinion.

Reversed and remanded, with directions.

Millet & Son, for appellant.

1. The petition does not state facts sufficient to constitute a cause of action. The facts which constitute the alleged fraud must be particularly set forth. Arnold v. Baker, 6 Neb. 134. The petition is also defective in that behalf because it fails to state that Swearingen made any false and fraudulent representations upon which Roberts, or his attorney, Cooper, relied, by which Cooper was induced to part with the possession of said deed, or was misled in any manner whatever. Maxwell's Nebraska Digest, title, Fraud. Kent v. Snyder, 30 Cal. 666. 1 Story's Eq. Juris. (12th ed.), secs. 191 and 197.

2. The gravamen of the issue in this case is the alleged fraud of Swearingen in obtaining possession of the deed on the seventeenth day of March, 1875.

a. The record of the judgment and proceedings from the circuit court in Iowa, in the suit between these same parties, commenced by Roberts on the twenty-third day of October, 1874, long before the alleged fraud in this action took place, is wholly irrelevant to the issue, and incompetent to prove fraud on the part of the appellant.

b Conceding here, for the sake of argument, that said record may be relevant to the issue, yet it fails to establish the alleged fraud, or squint that way, but on the other hand rebuts all presumption of fraud, as the two petitions of Roberts, in that record, show that he (appellee) has the lands of Swearingen mentioned in the contract between them, and that said Roberts has fully complied with the terms of the above contract, and has conveyed the lands in question to Swearingen.

c. The whole evidence, documentary and oral, fails to show the alleged fraud, and fraud is never presumed, but must be proven. 1 Story's Eq. Juris., sec. 190.

3. If Roberts had desired to rescind this contract on the ground of fraud, and reclaim this land, he should have returned, or offered to return, to Swearingen all property he had received from him thereunder, which he has utterly failed and refused to do. Brown v. Waters, 7 Neb. 424. Grant v. Law, 29 Wis. 99. Massen v. Bovet, 1 Denio, 70.

4. The case in Iowa, embracing this entire subject matter, having been begun long before this action, the sixth defense in Swearingen's answer is res adjudicata, is a complete bar to Roberts's right to recover herein. Bigelow v. Winsor, 1 Gray, 290. Freeman on Judgments (2d edition), secs. 249 and 252.

5. Roberts cannot use that judgment as an estoppel against Swearingen in this suit, because there was no such issue in the Iowa case as the fraud here attempted to be alleged. Freeman on Judgments (2d edition), secs. 252 and 256. Murphy v. Farwell, 9. Wis. 109.

Higgins & Crites, for appellee.

1. No objection was taken on the trial below to the introduction of evidence under the petition; hence, if it were insufficient, still if the court finds from all the pleadings in the case, or from the evidence, that Roberts has a cause of action, Swearingen's objection cannot here be permitted to prevail. But the petition itself is not defective. The petition states facts merely, from which it fully appears that Cooper did rely on Swearingen's statements, i.e. that he wanted to show the deed to his attorney for his opinion, and that Cooper let him have it for that purpose and for no other purpose. Swearingen's fraud had its inception after he obtained possession of the deed for this temporary object; and by relation, tainted with fraud, his acts and representations in obtaining it. His fraud consisted in his retaining and recording the deed without the consent of Roberts or Cooper, and without having entitled himself to it by a tender of the mortgage named in the contract. He could only lawfully be in possession of it by a full compliance with the contract, or with the consent of Roberts. Equity often presumes fraud from the circumstances and relations of the parties where none is alleged or proven, and will afford a remedy where none exists at law. Jackson v. King, 4 Cowen, 220. 1 Story's Equity Jurisprudence, Sec. 190, 190a.

2. The record offered in evidence conclusively established the fact, notwithstanding Roberts' allegation of his full compliance with the contract and conveyance of the Polk county lands, that he had not then, to-wit, October 11, 1876, fully complied with the contract, by failing to tender to Swearingen a deed of these Polk county lands; and further, that Swearingen had not then executed the mortgage in question. These facts being actually and necessarily in issue in that action, this adjudication and decree as to those facts is conclusive and binding upon both of the parties. Freeman on Judgments, Sec's 248, 249, 256, 257. Davis v. Talcot, 12 N.Y. 184.

3. This action is not for a rescission of the contract on the part of Roberts, but to deprive Swearingen of an undue and fraudulently obtained advantage over Roberts, he not being entitled thereto under the contract or otherwise. No right or title of Swearingen is affected which is not derived through the deed in question. Beeson v. Conly, 19 Mich. 103. Freeman on Judgments, Sec. 257.

4. All equities existing in favor of either of the parties prior to the date of the Iowa decree are fully merged therein; and the same, being unreversed, constitutes a full adjudication thereof, conclusive on both of said parties; and by necessary implication, as effectually wipes out the legal existence of the deed in question, as if the same had never been written. 30 Iowa 432. Freeman on Judgments, Sec. 329. 13 Iowa 539. The deed in question has never been delivered. Berry v. Anderson, 22 Ind. 36. Everts v. Agnes, 4 Wis. 343, and notes, and 6 Wis. 453. 30 Wis. 55. 4 O. S., 182, 194. Washburn on Real Prop., 3 Ed., Vol. 3, 262. 13 N.J.Eq. 455. 40 Iowa 402. 2 Gilman (Ill.), 564 to 566 inclusive. See same as to presumptions, 568. As to ratifying delivery of deed, see 22 Ill. 388. No title passes without performance. Dyson v. Bradshaw, 23 Cal. 535.

OPINION

MAXWELL, CH. J.

On the fourth day of August, 1874, the plaintiff entered into a contract with the defendant to give a bond for a deed to the defendant for the following described real estate, to-wit The east half of south-east quarter and east half of north-east quarter of section 22, town 16, range 1, in the county of Polk and state of Nebraska, "and the party of the first part (the plaintiff) also agrees to give to the party of the second part a good and sufficient warranty deed to the above described tract of land when the party of the second part shall have fully complied with his undertakings and convenants, hereinafter mentioned, upon his part. The party of the first part also further agrees to relinquish his timber claim on the following described land, viz: north-west quarter of north-east quarter of section 22, town 16, range 1, in the aforesaid county and state, unto the party of the second part. The party of the first part also agrees to let all his household and kitchen furniture, and all nursery stock on said place, and four head of cattle, and one lumber wagon, and all farming utensils on said place go with said place to the party of the second part as part of the consideration to be received for it from the second party as hereinafter mentioned and without additional charge or expense to him. The party of the second part upon his part agrees to receive said place on the terms as above set forth, and to make payments as follows in full consideration for the same, to-wit: Warranty deed to lots four, five, and six in block six, in Red Oak Junction, Iowa; warranty deed to north half of south-west quarter section 24, town 75, range 34, in Cass county, Iowa; warranty deed to north end of east half northwest quarter of section 9, town 63, containing thirty acres in Clark county, Mo.; warranty deed to northeast quarter of north-west quarter of section 24, town 72, range 39, in Montgomery county, Iowa, all which deeds, except the last one, to be made at this date and deposited with J. C. Cooper, of Red Oak, until they are to be delivered, in compliance with the terms of his agreement, but the last deed not to be made until the first day of January, 1875, but the possession of all property to be delivered at the same time. The party of the second part also agrees to make the following additional payments, $ 300 June 1st, 1875, $ 600 Dec. 1st, 1875, $ 566 Dec. 1st, 1876, $ 566 Dec. 1st, 1877, $ 568 Dec. 1st, 1878, and with ten per cent interest payable annually. He...