The record-union., 1899-03-22

same time executed and delivered to
the plaintiff a deed for that property,
and on the same day plaintiff ana her
said husband executed and delivered to
Mrs. Oschwald a deed for the property
situated at Ninth and streets, under
the agreement that Mrs. Oschwald
would assume and pay all the Indebted
| ness of the estate of said John Osch-
valid, deceased.
| The final decree of distribution in the
matter of the estate of John Oschwald,
deceased, was duly made and entered
on. the 10th day of December, lS92
This decree recited the execution and
| delivery of the aforesaid deeds, and
distributed said estate in pursuance OF
! the will of said deceased, as modified
| by said deeds.
On the 10th day of December 1885,
said Mary J. OschwaldT married the
defendant, John Kampfen, and shortly
thereafter conveyed the south half OF
the east half of said lot D, in the block
! bounded by I and ] and Eighth ana
| Ninth streets Except the north six rect
of the west half of the south half or
the east half of said lot 5) to one A. j.
Pommer, and, as part payment for the
purchase price, Pommer executed 10
the defendant and his said wife a mort
gage thereon for $1,000.
Plaintiff seeks, in this proceeding, the
decree of this court adjudging and de-
creeing that the defendant holds SAID
mortgage and that portion of said lol
5 which was not conveyed to Pommer
as aforesaid in trust for the use ana
benefit of plaintiff.
The pIeadings in this case are too
voluminous to permit of the full state
ment of their contents in this opinion
and it is deemed sufficient to say that
plaintiff alleges in her complaint ana
contends that she was induced to make
the deed of the Ninth and M street
property to her father on the "a day
of September 1890, and also the later
deed to her stepmother, dated June HI
1892, for the Ninth and street prop
erty. through and by reason of the
fraudulent representations and con-
nivance of her said stepmother, and by
reason of the trust and confidence
which plaintiff reposed in her on ac-
count of the confidential parental rela-
| tions existing between them
The answer of the defendant trav-
erses all of the material averments OF
the complaint, and sets up several sep
arate answers and defense, and among
others the bar of the statute OF nml-
| tations The main question I'M the case,
however, is whether or not any ffaud
was practiced upon, or any undue IN
| fiuence exercised, or undue advantage
taken of the plaintiff in the transaction
of June II, 1892 when plaintiff con-
tveyed to her stepmother, Mary j. Osch-
wald, the property situated at Nlnth
and ] streets, and the latter conveyed
to plaintiff the property situated at
Ninth and M streets.
| In order to fully understand and de-
| ternine the character of said transac-
ton it is necessary to ascertain the
situation of the parties and the rela-
ton which they bear to the properly
and to one another at the date OF salc
! transfer as the same appears from the
testimony.
| There is practically no conflict in the
| evidence as to the value of said real
estate; that is to say, the property
situated at Ninth and ] streets was
shown to be of about the value OF S2l.-
| COO, and the property situated at Nlnln
| and NJ streets of about the value OF
| s., 600 The last mentioned properly
was subject to a mortgage helo py
| Mrs. Oschwald for S6,UUU, on Wnlch
there was due on June II, 1897, inter-
est amounting to $3.50, making the total
| indebtedness against that property
| sc, $50, or practically equal to the
actual value of the property. The
| Ninth and J street property being the
only other property owned by the estate
of John Oschwald, was subject to
mortgage made by the deceased IN ms
lifetime in favor of the Germanla
Building and Loan Association LOT
$4,000, and was also subject to the
payment of the debts and expenses OF
administrator and the funerai eA-
penses of the deceased.
That is to say, said property was
conveyed to Mary J. Oschwald subject
to the following debts of said estate
The mortgage of the Germania Build
ing and Loan Association 1or Slo,Voo,
the mortgage which she herself held
against the estate in the sum OF
sc. $50. and the debts and expenses OF
administration, amounting to .siooo'
making a total Indebtedness against
said Ninth and street property
amounting to S1S,600, which, being de-
Quoted from the value thereof, namely,
S21 600. leaves the net value of the
properly COllSCyCN ~ 49, -
amounting to 81, 400. While on the
other hand, the net value of the prop
erty conveyed to plaintiff amounted to
$1,000.
1t will be remembered that, by the
terms of the will of said John Osch-
wald. he beoueathed an undivided one
half of his property to his wife, to have
and to hold the same during her life,
with remainder in fee over TO his
daughter in said half of his property,
and the remaining half of his said
property to his said daughter. In ad-
dition to the interest which Mary j.
Oschwald derived by the terms of the
will Of said deceased, she was entitled
to a homestead right in his estate,
which right was, of course, abandoned
by her deed to the PLAINTIFF; and, con-
sidering the age of the respective par
ties to the transaction, and the net
value of the property which each re-
ceived hereunder, ann unable to say
that there was not a Quid pro quo
consideration moving to the plaintiff
for her deed to the Ninth and street
property.
Plaintiff contends further, that she
was induced to make said deed because
of the trust and confidence which she
reposed in her said stepmother by rea-
son of the parental relations existing
l1n+x tlo,l 1aA