The Bowbells tribune. [volume] (Bowbells, Ward Co., N.D.) 1899-1969, 1915-11-19
WIPER WINS APPEAL
IN EMERY CASE

IN tMEKI CAot
The supreme court of the state OF
North Dakota affirmed the decision
Of the district court in the case OF
Ed. Emery VS.. the First National
Bank Of this city and A. C. Wiper
having handed down it's decision
on Thursday CT last week. This
case created considerable interes,
here at the time it was brought
and tried. Emery brought suit
about two years ago for an ao
counting against the defendants to
whom he had decided his land near
this city, alleging that he was feeble
minded and that Mr.. Wiper forced
him by threats into signing a bill
of sale and deed. The case was
tried at: Minot on change of venue
from this county, and at that time
a decision was rendered in favor
CT Wiper Emery had the case
appealed and the judgment of the
district court was affirmed. Fol
lowing are the findings Of the high
er court: ~ - -1r
+. Edward w. Emery, plaintiff and
appellant, VS.. First National Bank
Of Bowbells and A. c.. Wiper, de-
PENDANTS and respondents.
~ Syllabus: L.. Wherein a suit in
equity to set aside a conveyance of
land a jury is requested and certain
issues are submitted to it for de-
termination the provisions OF Sec
ton 7846 of the Compiled Laws of
1913, being the so-ca1led Newman
act, do not apply, and upon appeal
the supreme court will not try the
case anew for the correction of
errors merely.
2. Wherein suit in equity to
set aside conveyance Of land a
jury is requested and certain is
sues are submitted to it for deter
mination, the verdict of the jury,
though advisory merely and not
binding upon the trial court, is en-
titled to receive grave considera-
ton at the hands of such court and
it will be error to refuse to receive
the same and to make findings + of
fact and conclusions of law in the
absence of such verdict unless it
appears from the record that If the
jury had found contrary to the find
ings of the trial judge their verdict
would have been clearly; wrong. In
the case at bar such is found to, be
So. @ y; ~ @ "''
sS;'f3S y 3S Nm order, to set aside az deed
on the ground .Saf undue Influence
the proof must be clear and con:
vincing. + " jill $afs =
4. The criterion as to what is
or what is not confidential rela-
:tionship is whether the relations
existing between the contracting
parties are Of such character as to
render it certain that they do not
deal on equal terms but that either
on the one side, from a superior
knowledge Of the matter derived
from a fiduciary relation or from
overmastering influence, or, on the
other side, from weakness, depend
ance or trust justifiably .reposed,
unfair advantage in a transaction
is rendered probable. y **s'
5. Where a confidential rela-
stionship is established between
parties in an action to set aside a
deed on- this account, the transac
.tion is presumed to be void and the
burden is shifted on the party to
whom the confidence is reposed and
who occupies a sfduciary position
to show afIlr1natively that no de-
5ception was used and that all was
fair, open. voluntary and well un-
sderstood. s5 .5.S s .... i.
E5 ,&5s Evidence examined and no
proof Of "a confidential Relationship
held to exist, but rather that of q
banker dealing with one to nom
the bank has advanced money, and
one which is hostile rather than
confidential 53:5 55
The mere fact that one Il
nervous and absent-minded does not
of itself prove con ntractual Inability
5 Where one tak kes q deed sub.
sject to an ,ltstandi ling ortgage
and the assump Ion Of such mort
gage enters into the consid GRAFTON
the grantee Is bound to- II pay tle
same even though he does nj not as.
sumo It Nv express terms Of 5$s the
deed.
cal from Il district court q
Ward county, {. Els special
$jud dge.s ctiol to set aside a deed
Sto' real estate and bill OF sale so1
personal property Jud dgmeIl fol
defenda ut III Plaintiff iff q appeals.
ffirIned. Opinion of the court
by Bruce, jAd ge.
II PaIda. Aaker Il &. Green csesss mot
attorneys for plai aintiff AM appel.
Ian
3ss Greenleaf and Bradford y
Nash soff finot and Francis Mllr.
phy Bismarc orneys for II
sfendant and resi- pond en-
"A n II On ss91