Archer v. Lapp

• Decision Date: 13 April 1885
• Citation: 6 P. 672,12 Or. 196
• Parties: ARCHER v. LAPP.
• Court: Oregon Supreme Court

6 P. 672

12 Or. 196

ARCHER v. LAPP.

Supreme Court of Oregon

April 13, 1885

Appeal from Coos county.

J.M Siglin, for appellant.

W.R Willis, for respondents.

THAYER J.

This appeal is from a decree of the circuit court for the county of Coos, rendered in a suit commenced by Samuel and Rachel Archer, the respondents herein, against Plisely Lapp and Stephen Lapp, to set aside a deed executed by one William Archer in his life-time to the appellant Plisely Lapp. The said William Archer was the father of the respondent. He was residing in Coos county at the time of his death, which occurred in January, 1880. The deed referred to bears date December 7, 1878, and purports to have been executed and acknowledged on that day, but was not recorded in the clerk's office of said county until the eighth day of March, 1879. The premises included in the deed are 160 acres of land, situated in Coos county, and constituted the home of the said William Archer, for a number of years prior, and until the time of his death. It is alleged in the complaint and the proofs tend to show that at the time of the execution of the deed the grantor was 88 years old; that he had been for some time prior thereto infirm, in consequence of extreme age; had been afflicted with dizziness at times; was childish, and was subject to sick spells, and frequently was cross and irritable. His son, said Samuel Archer, resided for some time with his father, and claims to have taken care of him generally for several years; to have furnished him with money at times, and nursed him in his sickness. The son had a wife and child, and they all lived together upon the premises in question for some time. But the old gentleman having conceived a dislike to the son's wife, the latter subsequently built another house for himself and family where he remained until the fifth day of July, 1878, when he moved to California, after which Mrs. Lapp from time to time assisted the old man and nursed him during his sick spells. He appeared to have some means, money, and cattle, aside from the land.

The son, Samuel Archer, testified in his deposition given in the suit, that his father had $400 he had put away; that he had that amount when he left for California; and, after he left that he drew some $300 of his money, out of which he paid some of the son's debts. The testimony of his having the $400 appears to have been hearsay, rather, and, besides, it does not agree with other portions of the son's testimony: that he let him have the money to enter his land, and supported him for twelve years. But that the father drew the $300, and that he had cattle which he sold from time to time for money, was satisfactorily proved.

The deed in question was drawn up and signed at Coos City, which is situated a few miles above, on the slough near which said William Archer lived. According to the testimony of Mr. D.L. Watson, an attorney residing at said Coos City, said William Archer came to his place on said seventh day of December, 1878, and requested him to draw the deed; that he did so, and it was then signed by the grantor, and duly witnessed; and Mr. Watson filled out the acknowledgment, and gave the deed to said Archer to go and acknowledge it before Mr. Horswill, a justice of the peace in the neighborhood; and that he took it and left. The grant was to Mrs. Lapp, and purports to have been in consideration of $500 received from her. She was not present when the deed was signed. It appears to have been acknowledged before Mr. Horswill, but he testified positively that he did not on the seventh day of December, or at any time, take the acknowledgment of said William Archer to a deed conveying the said premises to Mrs. Lapp. The signature, however, purporting to be that of Frederick Horswill appears, from the testimony of witnesses, and from a comparison of his handwriting with other documents shown in evidence, to have been his, and he evidently took the acknowledgment, or at some time appended his name thereto without having taken it.

The only evidence of the purchase and sale of the premises is that of Mrs. Lapp, and that is very meager. She testified "that she bought a piece of land from him, William Archer; he went to Coos City in the morning, and came back in the evening with the deed, and I received it that day, and paid him the money for it." She was asked what part did Stephen Lapp, her husband, take in purchasing or procuring the deed for the land, and answered, "he had nothing to do with it; he didn't know anything about it for about three months after; he never saw the deed until he saw me hand it to the assessor;" and also testified that she made an effort to keep a knowledge of the fact that she had the money she paid for the land from her husband. She was interrogated as to where she got the $500 which she claimed to have paid for the land, and attempted to explain the fact but her testimony upon that point was vague and unsatisfactory. The circumstances of her affairs showed pretty conclusively that she had no such amount of money at the time, and tended very strongly to show that she was impecunious. She and her husband were present during the last sickness of William Archer, and at the time of his death, and seemed to have had charge of his affairs. His death occurred only little more than a year after the execution of the deed, and there was only found among his effects the sum of $8.37; and there was no evidence in the case to justify the conclusion that at any time after the pretended payment to him of the $500 he had any such amount of money, or any more money than he was shown to have had and received from other sources. I think we may safely conclude from all the evidence in the case that Mrs. Lapp never paid a cent for the land, and that the pretended payment of $500 therefor is a mere subterfuge. The whole transaction was a clandestine affair, and well calculated to excite suspicion as to its honesty and good faith. To my mind, it was a clear attempt to swindle the old man out of his land and defraud the respondents of their inheritance. The whole surroundings of the case indicate that Mrs. Lapp controlled the whole matter. Her husband, very evidently, had no voice in the community affairs of his family, and William Archer, in his helpless and dependent condition, was wholly powerless in her hands. She had full opportunity to manage him, and her statements and admissions to other parties, and the result, show beyond question that she did manage him completely. Mrs. Agnes Richards testified to the following occurrence: "Question 2. Were you acquainted with William Archer during his lifetime? Answer. I was; knew him from eleven to...