Applegate v. Dowell

• Decision Date: 19 December 1887
• Citation: 16 P. 651,15 Or. 513
• Parties: APPLEGATE v. DOWELL.
• Court: Oregon Supreme Court

16 P. 651

15 Or. 513

APPLEGATE v. DOWELL.

Supreme Court of Oregon

December 19, 1887

Appeal from circuit court, Douglas county.

Action by D.W. Applegate against B.F. Dowell to remove a cloud from his title to certain real estate. Judgment for defendant. Plaintiff appeals.

Williams & Williams, for appellant.

J.F Watson, for respondent.

THAYER J.

This appeal comes here from a decree of the circuit court for the county of Douglas. The appellant commenced a suit in that court to remove a cloud from his title to 40 acres of land which he alleged in his complaint that he is the owner of in fee simple, and in possession of. The land was a part of the donation land claim of Jesse Applegate in said county of Douglas. The respondent denied in the answer the appellant's ownership of the land, and claimed ownership thereof in himself under a decree recovered by him against the said Jesse Applegate, the appellant, and others, on or about the fifth day of January, 1883, in a suit in the United States circuit court for the district of Oregon, and a deed executed to him in pursuance of such decree by the master of chancery of said court; alleging that said land was included in a certain tract of land consisting of 121.55 acres which was found in said suit by said United States court to belong to the said Jesse Applegate, and subject to the payment of a certain judgment in favor of the respondent, and against said Jesse Applegate. The appellant filed a reply to the respondent's answer, in which he denied that the title to said 40-acre tract, or any part of it, was in issue in the suit in said United States court denied that said last-mentioned court had any jurisdiction in said suit to render such decree, or that said master in chancery had any power to sell said land. Upon the hearing of the case in the court below, the appellant, to maintain his cause, gave in evidence a deed to said 40-acre tract executed to him by William H.H. Applegate and wife on the eighth day of October, 1874, which purported to convey to him said last-named tract. The deed was duly executed and acknowledged so as to entitle it to record, and was duly recorded in the office of the clerk of the county of Douglas on the thirty-first day of October, 1874, in the record of deeds in said office. And it appears to have been conceded on the part of the respondent that at the time of its execution the said William H.H. Applegate held a deed from said Jesse Applegate to certain lands which included said 40 acres, and that the same was a part of said Jesse Applegate's donation land claim before referred to. The respondent, to sustain the issues on his part, gave in evidence a duly-certified copy of an amended and supplemental bill filed in said United States court, in said suit, on the twelfth day of September, 1881, in which the respondent was complainant, and the said Jesse Applegate, William H.H. Applegate, the appellant, and others were defendants; also of an answer to said bill filed in said suit by the appellant; and also of the decree of the court therein, and of the deed executed to him by said master in chancery. Said deed bears date December 6, 1883. The appellant's counsel objected to the admission of said evidence, upon the grounds of irrelevancy and immateriality; which objection the court overruled, and the appellant's counsel excepted to the ruling.

The main issue between the parties is the ownership of the 40 acres of land in suit. The appellant, I would infer, was in possession of the land at the time the suit was commenced, as his allegation of possession is not denied in the respondent's answer; and it was admitted at the hearing that he paid full value for it upon the purchase thereof referred to. The circuit court failed to make any findings of facts and law as required by section 393, Civil Code, as amended in 1885, and the counsel on either side have presented only a cursory view of the matter, and the briefs they have submitted contain but a meagre statement of it. The court is left, therefore, to search through the various documents referred to, in order to find out what is in the case.

The bill filed in the suit in the United States court states substantially, that the respondent and the said Jesse Applegate became co-sureties to the state of Oregon in 1862, and also in 1866, upon the official bond of Samuel E. May as secretary of state, who was elected to said office for two successive terms in said years. That May became a defaulter, and judgments upon the bonds were recovered in favor of the state, and against the sureties, upon each of them, some time in 1874. That one of said judgments was for $8,929.85, besides costs and disbursements; and a transcript thereof was filed, and the judgment was docketed, in the office of the clerk of the county of Douglas on the eleventh day of August, 1874. That prior to the twenty-seventh day of June, 1878, the respondent paid on said last-mentioned judgment $10,837.75, and on said day recovered a judgment against said Jesse Applegate, as his co-surety on said payments, for the sum of $4,882.19, which was on the same day entered on the judgment lien docket of said county of Douglas; that respondent on the sixteenth day of November, 1878, paid on the said judgment $1,385.61, the balance due thereon, and gave due notice that he claimed the benefit of it against said Applegate, and became subrogated to the rights of the state in reference thereto, upon which he caused an execution to be issued, and collected the larger part thereof. That the amount of his claim against said Applegate, arising out of said affairs, was on the first day of January, 1881, $6,584.09. That said Jesse Applegate, in 1849, took the said donation land claim under the donation act of September 27, 1850, which is claim No. 38, notification No. 54, certificate No. 103, T. 22 S., R. 5 W, W.M., and contains 642 acres. That he perfected title thereto,--the north half to himself, and the south half to his wife, Cynthia Ann Applegate. He also acquired other lands situated in said county of Douglas, and which are described in the said bill. That said Applegate and wife, with intent to delay, cheat, and defraud the state of Oregon and the respondent out of said debts, deeded all of said lands to their children, as follows: To said William H.H. Applegate, their son, 160 acres of the north half of said donation land claim, by deed dated the sixth day of April, 1867, for the apparent consideration of $500; also 80 acres of said donation land claim, by deed dated the nineteenth day of April, 1869, for the apparent consideration of $1; which deeds were recorded in the office of the clerk of said county,--the first one, the sixth day of February, 1869; and the second one, the fourth day of May, 1869. To the appellant, their son, 160 acres of the Jesse Applegate part of said donation land claim, by deed dated April 6, 1867, for the apparent consideration of $500, which deed was recorded in said last-mentioned office the sixth day of February, 1869; also 80 acres of said donation land claim, for the apparent consideration of $1, which was recorded in said office May 5, 1869. To Charles Putman, a grandson of Jesse Applegate and wife, a tract of land outside of the donation claim. To Peter Applegate, their son, 211.31 acres of land, 170 acres of which was a part of the said donation land claim. Also to Sallie Applegate, another tract of land outside of the donation land claim.

The bill charges that said deeds were illegally recorded; that each and all of the grantees received them with the intent before mentioned; that each and all of them had notice that said Jesse Applegate was largely indebted to the state of Oregon, as the security of May on said bonds, at the time each deed was made and delivered, and that they well knew that the deeds would make the grantor, Jesse Applegate insolvent; that the deeds to William H.H. Applegate and to appellant, dated 1867, were antedated, for the purpose to deceive, cheat, etc.; that the pretended money consideration in each was inadequate, and that neither of the grantees paid any money for the land described in said deeds. It is also alleged in said bill that on the seventeenth day of September, 1879, an execution was issued on respondent's judgment against Jesse Applegate to the sheriff of Jackson county, and that it has been since returned unsatisfied; and that on the seventh day of October, 1879, an execution thereon was duly issued to the sheriff of Douglas county, and had been since returned unsatisfied; also that on the twenty-fourth day of June, 1871, the said William H.H. Applegate deeded 200 acres of the north half of said donation land claim to Charles and John C. Drain for the sum of $2,000 cash, and that this deed was also illegal, fraudulent, and void. That the actual price paid was $2,000, yet the deed, to conceal the value of the land, and to cheat and defraud the creditors, etc., expressed on its face the consideration of $500 only, and in place of having a revenue stamp of $2, as was required by the act of congress at the date of said deed, only had a revenue stamp of 50 cents. "That each and all of said deeds, to William H.H. Applegate, to the appellant, and to the other grantees before mentioned, were illegal and a fraud, under the statutes of the United States, entitled 'An act to provide internal revenue to support the government, and to pay interest on the public debt,' approved thirtieth day of June, 1864, and the amendments thereto. That an inadequate consideration was expressed in each of said deeds by the grantors and grantees, with the intent of evading the provisions of said statute. That the grantors and grantees well knew that the land conveyed by each deed was, at the...