Schindler v. Spackman

• Decision Date: 15 November 1926
• Docket Number: No. 7297.,7297.
• Parties: SCHINDLER v. SPACKMAN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

16 F.2d 45 (1926)

SCHINDLER v. SPACKMAN et al.

No. 7297.

Circuit Court of Appeals, Eighth Circuit.

November 15, 1926.

C. R. Jorgenson, of Sisseton, S. D. (Clarence Anderberg, of Sisseton, S. D., on the brief), for appellant.

Howard Babcock, of Sisseton, S. D. (Turner & McKenna and Babcock & Babcock, all of Sisseton, S. D., on the brief), for appellees.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and SANBORN, District Judge.

VAN VALKENBURGH, Circuit Judge.

February 21, 1925, appellant filed in the District Court for the District of South Dakota his bill of complaint against appellees. In his brief the nature of his action is thus stated: "This action is brought by the appellant to compel the appellees to restore to him certain real estate alleged to have been secured from him by fraud, and in the event a reconveyance cannot be had that the appellees be compelled to account to him for the proceeds thereof."

The bill of complaint is long and involved; an abridged statement of its essential features becomes necessary for the purposes of this opinion. Jurisdiction is conferred by diversity of citizenship. Appellant alleges that on and prior to October 1, 1913, he was the owner in fee of certain land in Roberts county, South Dakota, consisting approximately of 160 acres, of the alleged value of $10,000, subject to a mortgage of $2,000, held by the state of South Dakota; that he was at that time an unmarried man, infirm, illiterate, and unaccustomed to business, living alone in a small building on this land; that the above-named appellees, with the exception at that time of the defendant Henry E. Schindler and the defendant Hal M. Knight, conspired to defraud appellant of his land; that in pursuance of this conspiracy one Lewis Cole induced appellant to execute a warranty deed conveying the real estate to said Cole. The consideration for said conveyance was 11 head of horses at a value of $1,500, $550 in money, and the following representations and promises alleged to be fraudulent, to wit: That appellant was to have a life lease of 5 acres of land extending along the west boundary of said premises, and the said Lewis Cole was to build a house and home upon said 5 acres of land for the use and benefit of appellant and for his occupancy during the remainder of his natural life; "the said Lewis Cole further stated to this plaintiff that he would cultivate said five (5) acres of land so reserved for the plaintiff during his life, without expense to the plaintiff, and that the plaintiff was to have the proceeds thereof for his own use and benefit during his natural life; that the said Lewis Cole further stated to the plaintiff and agreed with the plaintiff to furnish and give to the plaintiff two tons of coal, free of charge or cost, and deliver it to the plaintiff at his house on the 1st day of October for each and every year of his natural life; and that the said Lewis Cole further promised and agreed to and with the said plaintiff not to sell said real estate, but to hold the same in his own name and writing, so that the plaintiff would be fully protected in his use and occupancy of his five (5) acres, which was agreed to be reserved as a life estate for the plaintiff; that plaintiff believed and relied upon said statements and said representations so made to him by said Lewis Cole;" that immediately upon receiving the warranty deed the said Cole, with the knowledge and connivance of appellees, and in furtherance of the scheme to defraud appellant, caused alleged fictitious incumbrances to be placed upon the land and traded and exchanged the land for other tracts; that thereby all agreements between Cole and appellant were violated by the former; that the horses delivered to appellant were found to be diseased and worthless, and that by the various devices to which appellees resorted in furtherance of their conspiracy appellant received but $550 for his land, and was left helpless, without the intervention of a court of equity to obtain relief.

The complaint alleges that, immediately after discovering the fraud, appellant returned to the said Cole all the property theretofore delivered to him, and offered and agreed to return to the said Cole everything of value appellant had received from him, and demanded a reconveyance of his land and the satisfaction of a mortgage of $1,100, that had been placed thereon; upon these demands being refused, appellant filed suit in the proper state court for the recovery of his said property; that thereafter, and before the time of answering, appellees, including Henry E. Schindler, a brother of plaintiff, and appellee Hal M. Knight, the then county judge of Roberts county, South Dakota, further conspiring to prevent a trial of said action, caused a petition to be filed in the county court for the appointment of a guardian for appellant; that the said Henry E. Schindler and the said Hal M. Knight, for the purpose of preventing appellant from making objection to such appointment, stated to appellant that said Schindler, as guardian, could much more readily secure a reconveyance of the property wrongfully taken from him, and that the interests of appellant would properly be looked after; that appellant being sick, infirm, and overcome by the loss of his property, relied upon the statements, representations and assurances thus made to him and consented to the appointment of his brother as guardian; that thereafter the said guardian was substituted as plaintiff in said action, discharged the counsel which had previously been retained by appellant, employed appellees Babcock and Turner as such counsel, and later dismissed the action pending in the state court for the recovery of appellant's property. Appellee Babcock, in whose name the title apparently had found its way, then reconveyed the land to the guardian, but subject to the alleged illegal incumbrances that had been placed upon it. Thereafter the guardian, conspiring with the other appellees, recognized further illegal incumbrances and charges upon the land in favor of some of appellees, and finally, on or about the 8th day of June, 1917, sold said land to one T. W. Cahill for the sum of $8,050; this sale was confirmed June 23, 1917; that in the report of the sale appellant was charged with an item of $3,124.10, which was made up out of alleged illegal incumbrances upon the land procured and placed thereon by the alleged conspirators.

September 30, 1924, by order of court, appellant was discharged from guardianship by the county court of Roberts county by order and decree declaring him to be fully restored to competency. It is alleged in the complaint that appellant did not know until a short time before he made application to the county court for his discharge, to wit, on or about the 22d day of September, 1924, that his property had been sold by the guardian and that said claims, which he alleges to be fraudulent and illegal, had been presented and allowed against his estate; that immediately thereafter he employed counsel, caused an examination to be made, and discovered the facts set forth by him in his complaint. He charges that by the conspiracy and devices stated he has been defrauded of his property, and that his brother, as guardian, participated in the fraud. He prays: "That the said fraudulent conveyances and incumbrances be vacated and set aside and that the defendants be required to restore to the plaintiff his property, or that the court determine the value of said property and also the value of the rents and profits thereof, and require the defendants to account to the plaintiff for the said value of said property and also for the rents and profits thereof; and that the plaintiff shall have such other and further relief in the premises as to the court shall seem meet."

To this bill of complaint the defendants filed motions to dismiss upon the following grounds: (1) That upon the face of the complaint the remedy is at law and not in equity and plaintiff has an adequate remedy...