Unkle v. Wills

• Decision Date: 28 March 1922
• Docket Number: 5918.
• Citation: 281 F. 29
• Parties: UNKLE et al. v. WILLS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

281 F. 29

UNKLE et al. v. WILLS et al.

No. 5918.

United States Court of Appeals, Eighth Circuit.

March 28, 1922

On Motion to Amend Opinion and Decree, May 23, 1922.

Paul A Ewert, of Joplin, Mo. (Henry C. Lewis, of Washington, D.C on the brief), for appellants.

O. L Cravens, of Neosho, Mo. (A. Scott Thompson, of Miami, Okl., on the brief), for appellees.

Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.

TRIEBER District Judge.

For convenience the appellants will be referred to herein as plaintiffs and appellees as defendants as they appeared in the court below.

In the original complaint the plaintiffs sought to set aside a deed executed by them on February 4, 1915, to Mary Wills, administratrix of the estate of Leander J. Fish, deceased, in trust for the defendant Joe P. Fish, the only son of Leander J. Fish, deceased, whereby they conveyed the one-half interest of the plaintiff Mary Josephine, as the widow of Leander J. Fish, in and to 200 acres of land, allotted to the said Leander J. Fish, deceased, as an enrolled member of the Quapaw Tribe of Indians. The charges are that it had been obtained by fraud and duress for a nominal consideration, although the land was of great value, $8,000 for agricultural purposes, and from $50,000 to $100,000 for mineral purposes, which facts, although well known to defendants, were concealed from plaintiffs by Joe P. Fish and his attorney, the defendant J. W. Swarts, and the false representations made to her, that her half interest, owing to the debts of her deceased husband, was practically of no value; that Mrs. Unkle, who had married Mr. Unkle, her then husband, during the lifetime of Leander J. Fish, although not divorced, was threatened by them with a criminal prosecution for bigamy, unless she executed a deed of conveyance to the defendants; and that in fear of such a prosecution and in ignorance of the value of the property, she and her husband, the plaintiffs herein, executed the deed for the nominal consideration of $10.

After the institution of the suit, the defendant Joe P. Fish, accompanied by his attorney, Mr. Cravens, went to plaintiffs' home in the state of Maryland, a short distance from Washington, D.C., where the plaintiffs were engaged in farming, and made a compromise and settlement of the pending suit with plaintiffs, whereby plaintiffs ratified the former conveyance, by reacknowledging it, and directed the suit, then pending, to be dismissed. Thereupon a supplemental complaint was filed, to cancel and set aside this compromise and settlement. The supplemental complaint charged that Joe P. Fish, and his attorney, upon visiting the plaintiffs in their home, again falsely represented to them the value of the property and Mrs. Unkle's interest therein, inveigled them from their home to the city of Washington, D.C., and after their arrival there, were by fraudulent and false representations induced to reacknowledge the deed theretofore executed and an order for dismissal of the suit, for the consideration of $1,000, paid to them, and the promise of a conveyance of a small house and lot in the town of Commerce, Ottawa county, state of Oklahoma.

The supplemental complaint sets out fully the alleged artifices and fraudulent representations, alleged to have been made by the defendant Fish and his attorney to the plaintiffs, which induced them to reacknowledge the original deed and the instrument compromising and directing dismissal of the suit. It is also charged that the plaintiffs are illiterate country people and lacking in will power, and did not understand what they were doing, when they signed these instruments; that to induce them to do so they had been persuaded, overpowered, and unduly influenced by the constant and everlasting importunities of the defendant and his said attorney, and the false representations that the value of the land did not exceed $6,000, and was incumbered by debts and mortgages over and above its value, although in truth the land, owing to the rich zinc mines thereon, was worth not less than $200,000, which fact was concealed from plaintiffs; that thereafter they kept Mrs. Unkle in Washington, concealed from her husband and her attorneys. The prayer of the supplemental complaint is that the original deed of plaintiffs to the defendant Mary Wills be canceled, that the re-execution thereof on June 26, 1916, and the stipulation for dismissal of the then pending suit be declared null and void and of no effect, and all proper relief.

The suit was instituted by plaintiffs as poor persons, although their attorney, Ewert, had procured from them a contract for one-third of the property and also a lease on Mrs. Unkle's share of the land on very favorable terms, contingent on a recovery. Shortly after the deed had been recorded, Mr. Ewert, who before then had never heard of or known the plaintiffs, nor had they heard of him before then, wrote to them how valuable the land was, and offering to act as their attorney to recover it. Shortly thereafter he went to Washington, and sent for them to meet him at the New Willard Hotel, where they entered into the contract with him to act as their attorney. He then prepared the original complaint, in which it was alleged that the value of the land was from $50,000 to $100,000. The complaint having been read over to the plaintiffs, they verified it.

The answer of the defendants to the original and supplemental complaints denies that the defendants Fish and Swarts, when they obtained the deed of conveyance from the plaintiffs made false representations as to the value of Mrs. Unkle's interest or the value of the lands, or that they threatened her with a criminal prosecution on account of her marriage to Mr. Unkle, while she was the undivorced wife of Leander J. Fish, unless she executed the deed to her interest in the estate of the said Leander J. Fish. They deny that at the time the value of the land was from $50,000 to $100,000; deny that prior to that day lead and zinc had been discovered upon said lands, or that it had any value other than for agricultural purposes, although some lead and zinc had been discovered on some lands in the vicinity. They deny all charges of false and fraudulent representations and threats of criminal prosecution.

In response to the charges of the supplemental complaint, they allege that the sole object of going to the home of the plaintiffs on June 20, 1916, was for the purpose of effecting a compromise and settlement of the then pending suit. They deny that the defendant Fish represented the value of the lands to be $6,000, or was completely covered by debts, or that there was little or no equity in the land over and above the indebtedness; deny that there were continual importunities to execute the deed and execute a stipulation to dismiss the suit, or that they failed to inform her that the cause had been reopened before the Secretary of the Interior; deny that Mrs. Unkle was greatly weakened mentally and physically at the time. They deny that Fish or his attorney, by threats and undue influence took plaintiffs, while in a weakened mental and physical condition, to a hotel in Washington, and there overcame their weakened will and induced them to execute the instruments attacked. They admit that plaintiffs came to Washington, stopped at the Hotel Vendome, a reputable public hostelry, but that they came there voluntarily, for the purpose of settling the lawsuit, and that, after Mr. Unkle's return to his home, Mrs. Unkle remained a few days in the city with the defendant Fish and his wife, at her own request; then deny categorically all charges of fraud, false representations, undue influence, and threats, and that plaintiffs did not know the value of the land or their legal rights. They charge that the plaintiffs knew at that time the value of the land, and that it contained valuable lead and zinc mines and agreed to the compromise and settlement with full knowledge thereof and her rights; that they carefully read over said instruments before executing them, and had them read over to them again by the notary, who took their acknowledgments to these instruments; that they agreed to make the compromise for the consideration of $1,000 in money and a deed to a lot in Ottawa county, Okl.; that long before that time plaintiffs knew, as they had been fully advised by their attorney, the nature, character, and known prospective value of the land, and they made the compromise with full knowledge of all the facts of Mrs. Unkle's rights.

The cause was heard orally in open court except the testimony of Mrs. Unkle, which was taken in Washington, D.C., by an examiner appointed by the court, and some testimony, affecting the moral character of Mrs. Unkle, which was properly held inadmissible by the trial court, and will therefore not be considered. The court made special findings of fact and a general finding for the defendants on July 15, 1920. On September 30, 1920, attorneys for the plaintiffs filed an application to amend the findings of fact and conclusions of law. Some of them were by the court sustained.

There was also a motion by plaintiffs to exclude some of the evidence introduced, which was sustained, except, it is claimed by counsel for plaintiffs in the assignment of errors, that the court refused to exclude the testimony of Mrs. Unkle at an examination had before the Commissioner of Indian Affairs. This is set forth in the ninth assignment of error. In this counsel are mistaken, as the court excluded it, as will be shown later. They also complain that the court admitted in evidence that the defendant Fish offered Mrs Unkle a deed to the Oklahoma house, and a note from him to her asking what to do with this deed. The court certified that...