Schmitheimer v. Eiseman
| Citation | 70 Ky. 298 |
| Parties | Schmitheimer and wife v. Eiseman. |
| Decision Date | 14 October 1870 |
| Court | Kentucky Court of Appeals |
APPEAL FROM LOUISVILLE CHANCERY COURT.
O. F STIRMAN, For Appellants,
12 Peters, 345, Hepburn v. Dubois.
17 Barbour, 321, Wayne v. Bell.
15 Ohio 72, Davis v. State.
10 Ohio 310, Carr v. Williams.
24 New York, 72, Watkins v. Abrahams.
11 Cush. 40, Merriman v. Cunningham.
10 New Hampshire, 184, Burley v. Russell.
33 Barbour, 166, Ackley v. Dygert.
1 Russell on Crimes, 22.
5 Sand. (S. C.) 228, Brown v. McCune.
6 Am. Law Reg. 635, Glidden v. Strupler.
Tyler on Infancy and Coverture, pp. 513, 359, 726.
ISAAC R. GREENE, C. B. SEYMOUR, For Appellee,
CITED
17 Wendell, 120, 135, Bool v. Mix.
14 B Monroe, 642.
13 Mass. 375, Worcester v. Eaton.
24 Barbour, 150, Voorhees v. Voorhees.
11 Humphreys, 473, Scott v. Buchanan.
11 B Monroe, 115, Bailey v. Bamberger.
41 New Hampshire, 346, Lock v. Smith.
17 Texas, 417, Stuart v. Baker.
1 Story's Equity, 240, 377.
3 Edward's Chy. (N. Y.) 225, Hyllier v. Bennett.
8 Texas, 80, Cummings v. Powell.
8 Texas, 397, Womack v. Womack.
6 A. & E. 475, Pickard v. Sears.
3 Bush, 702, Conolly v. Branstler.
| 2 |
Fonblanque, B. 1, chap. 2, sec. 4, and notes.
Tyler on Infancy and Coverture, pages 73, 59.
Chitty on Contracts, page 160.
Revised Statutes, sections 20, 21, chapter 24.
Story on Agency, 5th ed., section 6.
Bacon's Abridgments, " Infants."
Appellant, Louisa Schmitheimer, was formerly the wife of Jacob Schnell, now deceased. During the life of her said first husband she joined with him in conveying to appellee, Eiseman, a certain parcel of land in the city of Louisville, inherited by her from her father.
In conjunction with her present husband she prosecutes this suit to have said conveyance set aside, and to compel appellee to restore to her the possession of the land. She claims that at the time of the execution of the conveyance she was an infant under the age of twenty-one years, and that she was induced to join in its execution by reason of the " threats, persuasion, and influence" of her first husband.
The allegation of infancy seems to be sustained by a preponderance of testimony; but it appears that before Eiseman could be induced to part with his money, or to accept the deed now sought to be vacated, Louisa and her then husband, for the purpose of satisfying him that she had attained her majority, made oath before a notary public that to the best of their knowledge and information she was then more than twenty-one years of age. Appellee, relying upon the truth of the statement thus solemnly made, concluded the trade theretofore negotiated by making the agreed payments and accepting the title.
Appellants claim that because of the presence of the husband at the time the wife made this false statement, and deluded and misled appellee as to her true age, the law will regard her as acting under the coercion of her husband, and consequently innocent of all participation in the fraud then and there successfully practiced.
In the case of Davis v. Tingle, 8 B. Mon. 542, the wife in company with her husband stood by and permitted her slave to be sold without disclosing her ownership, and she was not allowed afterward to assert title against the innocent and bona-fide purchaser who had been misled by her silence. This appellant was not merely silent when she should have spoken, but she actively participated with her husband in the deception being practiced upon Eiseman; and the only ground upon which she now bases her right to the relief asked at the hands of the chancellor is, that what she swore to be true when she deceived and misled appellee was in point of fact false. There is nothing in the record which indicates that she acted either under the coercion or persuasion of her husband; but when her subsequent...
To continue reading
Request your trial