Swartz v. Duncan
| Decision Date | 04 January 1894 |
| Citation | 38 Neb. 782,57 N.W. 543 |
| Parties | SWARTZ v. DUNCAN ET AL. |
| Court | Nebraska Supreme Court |
1. The supreme court, though trying a case de novo on appeal, will not disturb the finding of the district court, unless the finding and decree cannot be reconciled with any reasonable construction of the testimony. Gadsden v. Phelps, 56 N. W. 314, 37 Neb. 590.
2. A principal must repudiate the acts of his agent within a reasonable time after such acts come to his knowledge, or his silence and inaction will be deemed a ratification of his agent's conduct. Accordingly, where S., in 1881, conveyed his farm, and delivered possession of the same, to C. in trust for S.'s use, and C., in February, 1883, sold and conveyed the farm to D., taking his notes, secured by a mortgage on the farm, for purchase price, and on February 20, 1883, C. sent the notes to S., and advised him of the sale and conveyance to D., and S. retained the notes, and made no objection to the sale, either to C. or D., until October, 1888, when he brought suit to annul the contract of sale, held, that S. had ratified the sale and conveyance, through C., to D.
3. The evidence relied on in this case to sustain the defense that the compromise or settlement pleaded herein had been procured by unfair means examined, and held not to establish either fraud, duress, or undue influence.
Appeal from district court, Jefferson county; Broady, Judge.
Action by Mary H. Swartz against Samuel C. Duncan and others to cancel a conveyance of land, and for other relief. From a decree for plaintiff, defendants appeal. Reversed.Baker & Freeman, for appellants.
John Saxon, for appellee.
In the year 1881, Henry R. Swartz and wife conveyed 80 acres of land owned by them, and on which they resided, in Jefferson county, Neb., to Martha J. Carpenter, and in 1883 she and her husband, Solon B. Carpenter, conveyed this land to Samuel C. Duncan, for an express consideration of $700. Henry B. Swartz instituted this suit in the district court of Jefferson county in October, 1888, against Martha J. Carpenter, Solon B. Carpenter, her husband, Samuel C. Duncan, and Harriet A. Duncan, his wife, alleging, in substance, that defendants, in 1881, conspired together to obtain said land from plaintiff without consideration, and, to carry out their fraudulent intention, informed plaintiff that a complaint had been sworn out for him, and that a warrant for his arrest for a criminal offense was then in the hands of the sheriff, and that plaintiff would be arrested and imprisoned if he remained in the country, and advised him to leave the state; that they greatly frightened plaintiff thereby, he being a timid man, and caused him to turn over to Martha J. Carpenter and her husband all plaintiff's personal property, and to deed to said Martha J. Carpenter the land mentioned above, without consideration, transported plaintiff to a railroad station outside of Jefferson county, and shipped him to the state of Illinois, and, in a few days thereafter, shipped plaintiff's wife and children to him; that plaintiff and his family have since resided in Illinois, and, on account of their extreme poverty, have been unable to return to Nebraska; that the Carpenters converted to their own use all of plaintiff's personal property; that the conveyance of the land to Duncan by the Carpenters was a part of the fraudulent scheme to defraud plaintiff. The prayer of the petition was for a decree that Duncan be decreed to reconvey the land to plaintiff, and for an accounting of rents. Henry R. Swartz and his wife, Mary H., were, after this suit was brought, divorced, and Henry R.'s interest in the land and all his other property transferred to his wife, and she was substituted as the sole plaintiff in this case. The district court found the issues in favor of Mrs. Swartz, and entered a decree canceling the conveyance from Swartz and his wife to Mrs. Carpenter, and from Mrs. Carpenter and husband to Duncan, and quieted and confirmed the title to said real estate in Mrs. Swartz. From this decree, Carpenter and his wife and Duncan and his wife appeal.
There are three grounds relied upon by the appellants to reverse the decree.
1. That Duncan was an innocent purchaser of the land from Mrs. Carpenter without notice of the fact that Mrs. Carpenter held it in trust. Whether Duncan was an innocent purchaser--that is, whether he bought this land without knowledge of the fact that Carpenter held it in trust for Swartz--was a question of fact. The trial court found that Duncan purchased the land with knowledge of the fact that Carpenter held the land in trust for Swartz. After a careful study of the evidence, we are unable to say that this finding is wholly unsupported by competent testimony. It would subserve no useful purpose to quote the evidence. The testimony does not impress us very strongly with the conviction that Duncan was actuated with a fraudulent purpose in these transactions, but we have only the lifeless record for a guide. We have not heard the living witnesses speak, nor observed them, nor their conduct, while testifying. The trial judge had all these opportunities. The conduct of Duncan in the premises--that is, what he did, and the part he took, in sending Swartz out of the country--was a circumstance susceptible of an innocent or guilty interpretation, and whether one or the other should have been, and doubtless was, determined from the extent of credibility given to the statements of the witnesses who testified to the facts intended to establish the intent of the actor. “The supreme court, though trying a case de novo on appeal, will not disturb the finding of the district court unless the finding and decree cannot be reconciled with any reasonable construction of the testimony.” Gadsden v. Phelps, 37 Neb. 590, 56 N. W. 314. The first exception of appellants to the decree must therefore be overruled.
2. The second point made by the appellants is that Henry R. Swartz, before being divorced from his wife, ratified the sale and conveyance made by the Carpenters to Duncan. It appears from the record that Carpenter and his wife conveyed this land to Duncan on the 7th of February, 1883, the consideration paid by Duncan being $700, and paid as follows: A prior mortgage on the premises,...
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