Guy A. Miller, of Des Moines, for appel- | per acre. One McCormack, an insurance lant. Ryan & Ryan, of Des Moines, for ap-agent and an acquaintance of his as well as pellee. his foster father for 15 years, suggested to him one day that, if he wished to trade this PER CURIAM. The petition for rehearing | land for a larger farm, he had a man with suggests that the court has gone afield in such a farm, and introduced the young man passing on whether the evidence was suffi- to the defendant La Plant. Three days later cient to carry the case to the jury, in that plaintiff called on La Plant and insisted on the theory considered by the majority and going to look at his land, and, having found dissenter was not included in the instruc- McCormack, proceeded to Warren county, tions to the jury. Conceding, without decid- where he looked at a 3392-acre farm, title ing, this to be true, the majority is of the to which stood in the name of defendant opinion that the evidence was such as to Holloway, but in which La Plant had an uncarry the question as to whether plaintiff divided half interest. It was incumbered by knowingly misrepresented the lots as alleged two mortgages, one for $24,437.50, and the to the jury, while the dissenter is of the opin- other for $13,000. Three of the witnesses ion that any evidence bearing thereon was called by plaintiff estimated its value at $75 fully met. per acre and another at $80. One witness With this explanation the petition is over- called by defendant thought it worth $100 ruled. All concur. per acre or better. All these witnesses resided near the land and were familiar with its character. La Plant put a price of $150 LISTER V. LA PLANT et al. (No. 31878.) per acre on it, while Holloway fixed $150 at its fair value, saying they had allowed $140 (Supreme Court of Iowa. June 27, 1918.) per acre in trading for it. His father 1. EXCHANGE OF PROPERTY 8(4)-VALIDITY thought it ought to be worth the latter sum. -FRAUD-INADEQUACY OF CONSIDERATION. That one party to an exchange of land part- A land agent called by defendant estimated ed with $14,800 worth of property without reits value at $150 per acre, though admitting ceiving anything of value in return is a strong that more than half of it overflowed. circumstance tending to show fraud. 2. EXCHANGE OF PROPERTY 3(1)—VALIDITY -FRAUD-INADEQUACY OF CONSIDERATION. Fraud will be inferred from inadequacy of consideration only if the disparity between the value of the land and the consideration is suffi cient to shock the conscience. SUFFICIENCY MISREPRESENTATION VALUE OF LAND. In an action to rescind an exchange of farms, evidence held sufficient to show defendants misrepresented the value of their farm. [1, 2] The evidence discloses that South river flows through the land, as does Short creek in another direction, and all but about 100 acres overflows, some witnesses testifying that this happens about every third year, and others, once every four or five years. During the year of this exchange the crops were destroyed by excessive overflows. In view of the character of the farm we are inclined to give greater credence to opinions of those 4. EXCHANGE OF PROPERTY~3(1)—VALIDITY living near to it and familiar therewith for MISREPRESENTATION - LAND VALUE STATEMENTS OF FACTS. Representations as to market value and rental value of land to a person unfamiliar with land values and its use in the vicinity of such land were statements of fact, and not mere opinions. 5. EXCHANGE OF PROPERTY ~3(1)—VALIDITY -FRAUD. A party to an exchange of land perpetrates fraud on the other party by permitting his agent to appear as agent for the other where the agent, having confidence of the latter, urges him to make trade. a long period of years. Indeed, we entertain no doubt that the fair market value of this land did not exceed $100 per acre, and was much less than the incumbrance against it. After looking the land over and consulting with McCormack, the three went to Indianola and exchanged, plaintiff giving his note to La Plant for $3,500 with the understanding that a note and mortgage on his farm in Grundy county would be substituted as difference. Holloway conveyed the 3392 acres to Appeal from District Court, Warren Coun- plaintiff, and the latter the Hardin county ty; Lorin N. Hayes, Judge. Suit to rescind exchange of farms resulted in decree as prayed. Defendants appeal. Affirmed. C. H. E. Boardman, of Marshalltown, for appellants. Mears & Lovejoy, of Waterloo, and A. V. Proudfoot, of Indianola, for appellee. farm to La Plant. As defendant's land was worth nothing above the incumbrances, the net result was that plaintiff had parted with $14,800 worth of property without receiving anything of value in return. Little wonder that defendants did not care to take the trouble to look at the Hardin county land; for they must have deemed it a good trade, even though it were worthless. This inadLADD, J. The plaintiff, two days past 21 equacy of consideration for plaintiff's land years of age, owned 120 acres of land in and mortgage is a strong circumstance tendHardin county, subject to a mortgage of $6,- ing to show fraud. Inadequacy of price is 700 of the reasonable value of $150 to $155 evidence slight or powerful according to its relative amount and other circumstances. | ceed $3.50 an acre. Nothing was said of the Moreover, it may be so gross as that the dis- commencement in February previous of proparity between the value of the subject and ceedings to establish a drainage district and the consideration as to shock the conscience the excavation of ditch through the land and alone constitute satisfactory evidence straightening the water course of South rivfrom which the perpetration of fraud mayer, which was subsequently done, and an as be inferred. Black on Rescission and Can-sessment of $4,827.73 levied against the land, cellation, § 175; 2 Pomeroy's Eq. Jur. 926 to say nothing concerning the ditch through et seq.; Phillips v. Pullen, 45 N. J. Eq. 5, the farm. 16 Atl. 9; Bruner v. Cobb, 37 Okl. 228, 131 Pac. 165, L. R. A. 1916D, 377; Sherman v. Glick, 71 Or. 451, 142 Pac. 606; Stephens v. Ozbourne, 107 Tenn. 572, 64 S. W. 902, 89 Am. St. Rep. 157. Ordinarily other circumstances throw sufficient light on transactions where the inadequacy of price is extreme as to render decision based on that alone unnecessary. Such cases are rare, and only where the disparity is extreme will equitable relief be granted. This is in deference to the freedom of contract and in recognition of the right of owners to fix such prices on their property as they may choose. The evidence shows that these defendants allowed $140 per acre in trade, and though they may have known that this was in excess of its value, it is fair to assume that they must have thought it worth more than the mortgages against it. One of them says he thought the "equity" in it (the value above incumbrances) $8,000 or $10,000. Opinions of value differ greatly, and we are not inclined to give the disparity between the value of plaintiff's property and what he received greater significance than that of a strong and persuasive circumstance tending to show that he was in some manner influenced and deceived. II. Shortly after defendants acquired the 3392 acres they agreed that Holloway should pass as owner thereof and La Plant as his agent; that $1,000 should be paid any agent who would find a person who would buy the land; that the price should be $140 per acre; and that $7 an acre should be allowed as rent, and titles be exchanged at the time of sale or trade. In pursuance of this plan La Plant listed the farm with several real estate agents and a life insurance agent, McCormack, on these terms. In negotiating the deal Lister put a trading price on his land of $200 per acre, and, according to Lister, La Plant declared the 3392 acres worth $175 per acre, and that it would sell for $185 per acre in the fall, and could have rented right along at $7 per acre, and T. J. Holloway corroborated this by testifying that: "La Plant said they could get $7 an acre rent for this land. He told Lister that: If you buy, we will take it in at $7 an acre.' * * * La Plant told him he could get him $175 or $180 an acre inside of six months." [3, 4] As Lister's testimony is corroborated by that of T. J. Holloway, who would not be likely to lean in favor of plaintiff, we are in clined to find that La Plant made the repre sentations of value as alleged, and, as he knew that plaintiff was unfamiliar with val ues of land or its use in that vicinity, that he so did as statements of fact rather than mere opinions. Hetland v. Bilstad, 140 Iowa, 410, 118 N. W. 422; Ross v. Bolte, 165 Iowa, 499, 146 N. W. 31. He There is some doubt as to extent of plaintiff's reliance on these representations. testified first that he acted on his judgment and that of McCormack, but on cross-examination concluded that these matters infl enced him. He looked over that land, though, in a somewhat casual way and with out inquiry of disinterested parties concerning it, but the record has left us in doubt as to whether this callow youth would not have exchanged had nothing been said by La Plant concerning values. We are not ready to say that he would not have done so, and therefore treat these misrepresentations as circumstances tending to show the practice of deceit in behalf of defendants. See Black on Rescission and Cancellation, § 80. III. The record leaves little or no doubt as to the deception of plaintiff in another respect. Holloway testified: That on the day of the trade "La Plant was held out as being my agent, I being the owner of the land, and McCormack was there repre senting Lister, and that was in accordance with the agreement I had had with La Plant. That was the way things were to appear." This is not disputed, save as hereafter appears. The record leaves no doubt but Lister supposed McCormack was acting as his agent. He testified that he had told McCormack be fore starting to look at the land; that he "would make it worth his while." McCormack denied this, but does not pretend that anything was said concerning his agency for La Plant until after the deal was closed and both were on their way to Marshalltown, and as to whether anything was then said they disagree. Plaintiff is somewhat confirmed by the circumstances that he did execute a note for $120 to McCormack for his services. The latter explains this by saying that Lister be came hilarious on his way home, and boasted that he had made $7,000, when in response La Plant denied making any such repre- to his (McCormack's) suggestion that, if that sentations save that the rent would be allow- were so, he ought to make him a present, ed, and McCormack did not hear anything and that Lister then agreed to pay him $120, concerning what the land could be sold for. and subsequently executed his note for that 140 (Iowa quite in harmony with allowing the agent employed by him also ostensibly to act for the citation of authorities are not necessary to show that this amounted to a fraud on plaintiff. Considered in connection with inadequacy of price and misrepresentation of value, the deception practiced by the agent and by La Plant as to his relation to the deal a conclusive case is made out. The decree of the district court is affirmed. GER, JJ, concur. LUNNING v. LUNNING et al. (No. 32136.)* Cormack testified, he told him he was to be paid a commission by La Plant. It may be that plaintiff should have inferred from Mc-party with whom he proposed to deal. The Cormack's statement that "he had a man that had a farm for sale" and the fact that he was introduced by him to La Plant as agent, as contended by defendants, but La Plant was posing as agent, and plaintiff was without knowledge that he was interested in the land other than as Holloway's agent. McCormack was not in the real estate business. Moreover, for him to have appeared as agent for La Plant other than secretly would have been inconsistent with the latter's scheme for the sale of the land. By himself posing as agent of the supposed owner La Plant manifestly designed that the proposed victim should regard McCormack as his agent and friend and the course of both La Plant and McCormack is entirely consistent with this theory of the case.. McCormack and plaintiff went over the land together. They agreed that it looked well, and McCormack expressed the opinion that it laid well, and "he didn't see why it couldn't be soid for more." But he did not disclose to him that the land was then listed with him at $35 per acre less than it was then being priced. And when Lister directed him to carry an offer from him to La Plant of $3,500 difference he took it approvingly ostensibly as his agent to the ostensible agent of the supposed owner, Holloway. McCormack excused himself for thus encouraging plaintiff in that he knew the price on plaintiff's land to have been inflat-plaintiff and her husband, now deceased, and In a suit to set aside a conveyance made by ed $15 per acre. This would be $1,800, while that of defendant's land above the listed price was $12,900. Even if the price put on plaintiff's land were $6,000 more than its value, as was the fact, this left the margin $6,900, and the difference in the inflation over actual values, as seen, was much greater. [5] Even an agent owes something to the party with whom he is dealing in behalf of his principal, and ought not to stultify himself by knowingly misleading one who, notwithstanding such agency, is manifestly relying in large measure on his judgment. Infinitely more is his course to be condemned where as agent for another he knowingly allows the party with whom he deals to negotiate under the mistaken supposition that he is acting for him, and through such mistake and consequent reliance on his advice his dupe is defrauded of his means to the advantage of agent and principal. Such was the scheme concocted by defendants and carried out with aid of McCormack. It is idle for the latter, in the face of this record, to pretend that he did not assume the attitude of assisting plaintiff throughout, nor can La Plant be heard to say that he was not knowingly taking advantage of the situation. He planned to assume the false position of agent in lieu of that of part owner, and this was In action to set aside a conveyance executed 2. APPEAL AND ERROR 1011(1)-FINDINGS 3. DowER 44-PERSONAL PROPERTY-SALE to have plaintiff's dower rights administered, fendants for one-third of the personalty; for, there could be no personal judgment against dewhile the husband could not convey the realty so as to deprive plaintiff of her dower right, there was no such restriction with reference to personalty. Appeal from District Court, Hamilton County; E. M. McCall, Judge. Action in equity to set aside conveyance of land and for other relief. There was a decree for plaintiff, and the defendants appeal. Affirmed in part, reversed in part, and remanded. pellants. O. J. Henderson, of Webster City, Wesley Martin, of Webster City, for apfor appellee. of Helge Amundson Lunning, who died inPER CURIAM. The plaintiff is the widow testate in Hamilton county, Iowa, January 24, 1916. The deceased and plaintiff were married in April, 1902. Each of these parhad a family of adult children. From the ties had been formerly married, and each date of their marriage until the husband's death they lived together upon the farm which is now the subject of controversy. Both were well advanced in age, and at, the time of the trial below plaintiff was 80 years old. When the marriage took place the husband owned the farm on which they resided For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Iowa) LUNNING v. LUNNING: until his death. worth from $10,000 to $15,000, but had advanced in value at the time of the trial below to perhaps $35,000. The wife at the time of their marriage had in her own right a third interest in 40 acres of land and a little other property, all of which is estimated at about $2,000. Two and a half years after their marriage the husband and wife united in a deed of the farm to the husband's five sons, who are the defendants in this action. The deed contains the usual covenants of warranty. In the body of the instrument, after a description of the land conveyed, there is added a clause reading as follows: "Also all the personal property, including all rights and credits of the said Helge Amundson Lunning, is hereby conveyed, and also all rights of actions, and other property belonging to the said Helge Amundson Lunning are hereby assigned, set over and conveyed to said grantees. "The grantors herein retain unto themselves the right to use and occupy said premises during the natural life of said Helge Amundson Lun ning, and to collect the rents and profits arising from the use and occupancy of the same during said period. The grantors further reserve the right to sell, dispose of, manage, and control all the personal property herein conveyed and sold during the term of the natural life of said Helge Amundson Lunning, as they may see fit and proper. The property was then to her. She also alleges that the deceased "It is stipulated and agreed as a part of this conveyance that in the event that the said Anna Amundson Lunning shall survive her said husband, Helge Amundson Lunning, then as a part of the consideration of this transfer and conveyance the grantees herein shall pay unto the said Anna Amundson Lunning the sum of $2,000 as full payment for her interest in all the property herein conveyed, and the said sum shall be a perpetual lien upon all the land herein conveyed until the same shall have been paid. "The grantees herein are natural children of Helge Amundson Lunning, and are the stepchildren of said Anna Amundson Lunning, and are of lawful age." It should be added in this connection and as having some bearing upon the interpretation of this deed that the wife's property or the proceeds of its sale to the amount of $2,000 or somewhat less had been received and was in the possession of the husband. The wife appears to have been unable to write her name, and she subscribed to the deed by her mark. On December 29, 1918, four of the five grantees named in the foregoing deed united in conveying the undivided four-fifths of the farm to their brother Peter H. Lunning, who was the grantee of the other one-fifth of the legal title. The deed made was with covenants of warranty excepting from such covenants the life estate of their father and the obligation to pay plaintiff $2,000 if she survived her husband. expressed consideration for the conveyance was $11,628. The Within a short time after the death of her husband the plaintiff began this action to set aside the conveyance executed by her husband and herself and asking that said farm be decreed to be the intestate property of her deceased husband, and that her dower [1] I. Of the law applicable to cases of this character there is little or no dispute, and the arguments of counsel are properly directed very largely to a discussion of the facts. The principal fact issue is that which concerns the mental condition and competency of the plaintiff at the time she joined in the deed to her stepsons. The plaintiff was present at the trial below, and her counsel attempted to have her examined as a witness. The record made fairly tends to show that she was then too far advanced in imbecility to testify intelligently or connectedly, and that her mind and memory were so nearly blank that she was then incompetent to engage in business of any kind. It is not contended for appellants that this condition was simulated, but it is argued, and very properly, that the woman's condition at the time of the trial does not establish the existence of such condition when the deed was made several years earlier. It is nevertheless a material fact to be considered with the evidence as a whole. and conclusion so far as the real estate is concerned are right and should be affirmed. [3] II. We are of the opinion, however, that the entry of a personal judgment against the defendants for one-third of the alleged personal estate of the deceased cannot be sustained. In the first place, as a mere matter of practice it is open to serious doubt whether such a recovery is allowable without the interposition of an administrator, or at least so long as the time in which administration may lawfully be granted has not yet expired. But without deciding that question it is quite evident that on looking to the merits of the claim plaintff is not entitled to such judgment. While the deceased could not in his lifetime convey the land without his wife's consent in a manner to deprive her of her statutory interest therein, the law imposes no such restrictions upon his right to dispose of personal property. This he could in his lifetime sell or give to his sons or to any other person or persons at his pleasure and without regard to his wife's consent, unless perhaps there is an exception with regard to such items as are exempt from execution. In making such provision in the deed he did his wife no legal wrong, nor did the sons do her any legal wrong in accepting the property. To this extent, therefore, the decree entered must be reversed. [2] Other testimony was offered having a tendency to show that her mental weakness was not of recent origin, but had existed to some degree since a time anterior to the making of the deed. On the other hand, there was very considerable testimony by different witnesses to support the defendant's theory that, while not a woman of brilliant qualities, plaintiff was by no means an incompetent, but knew and understood the nature and effect of her act in joining in the deed, and expressed herself satisfied with the provision made for her in that conveyance. Much of this testimony on both sides is furnished by interested witnesses or by partisans of the contending parties, but altogether the record shows a case the true inwardness of which is more clearly perceived by the trial court before which the witnesses appear in person than can be discovered on appeal from a reading of the printed record, so that we are disposed to accord the finding of fact in that court a considerable degree of weight in reaching our conclusions thereon. The ar- III. The plea of estoppel relied upon by the rangement or settlement between the hus- defendants is without sufficient support in band and sons and the wife shows some cold-blooded disregard of her legal rights which makes one hesitate to believe that a sane and competent woman would have consciously agreed to it. The reserved life estate was made for the benefit of the husband alone, and out of an estate of $20,000 or more she was to receive $2,000, and it is open to a pretty clear inference that even this sum was intended to be little or nothing more than the husband was indebted to the wife. It should be said, however, that this debt was paid to the wife in the husband's lifetime. It is shown also by the defendants themselves that this disposition of the estate was suggested and brought about by them or by one of them expressly to prevent the wife's succession to a widow's interest in the property in the event that she should outlive her husband. the testimony, and the further plea that plaintiff's right of action has been barred by the statute of limitations appears to be ruled against defendants in Wallace v. Wallace, 137 Iowa, 169, 114 N. W. 913; Lucas v. White, 120 Iowa, 735, 95 N. W. 209, 98 Am. St. Rep. 380. The costs of the appeal will be apportioned and taxed one-half to each party. For the reasons stated in the opinion, the cause will be remanded to the trial court for such further proceedings as are not inconsistent with the views hereinbefore expressed. Affirmed in part. Reversed in part. LARSH v. STRASSER. (No. 3188.) (Supreme Court of Iowa. June 27, 1918.) 1. MUNICIPAL CORPORATIONS 706(5)—COLLISIONS EVIDENCE. That automobile in right-angle collision caused motorcycle to move sidewise about 30 feet is not alone sufficient to show that the automobile was going in excess of 25 miles an hour so as to make a prima facie case of negligence, under Code Supp. 1913, § 1571m19. 2. MUNICIPAL CORPORATIONS 705(2)-COLLISION-WARNINGS. As a mere proposition of natural equity it is possible that the carving out of a widow's share in the land for a surviving wife who had done little to aid in the accumulation of the estate would be tinged with some injustice to the sons who had served their father and rendered him valuable help in their early lives, and, had they shown any disposition In right-angle collision it was as much the to treat plaintiff with any degree of consider-duty of the rider of a motorcycle to give warnation in this matter, greater weight might ing as it was the duty of the driver of an autowell be accorded to some of their protestamobile. tions and denials as witnesses. As it is, 3. MUNICIPAL CORPORATIONS 705(10) COLLISION-CONTRIBUTORY NEGLIGENCE. though not without some hesitation, we are In right-angle collision between motorcycle disposed to hold that the trial court's finding and automobile, where neither gave warning, the |