Ball v. Danton

• Citation: 129 P. 1032,64 Or. 184
• Parties: BALL v. DANTON.
• Decision Date: 11 February 1913
• Court: Supreme Court of Oregon

129 P. 1032

64 Or. 184

BALL v. DANTON.

Supreme Court of Oregon

February 11, 1913

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by W.F. Ball against R.C. Danton and others. From a judgment for plaintiff, defendant named appeals. Decree modified, and bill dismissed.

The plaintiff in his own right, and as assignee of other claims recovered a judgment against the defendant A. Lane for $2,800, which, being unsatisfied, he brought this suit against the judgment debtor and Jennie Lane, his wife, Frank Lane and May Lane, his wife, and R.C. Danton to set aside certain conveyances of realty made by A. Lane to Danton and Frank Lane. The property deeded to Danton was two lots in Vernon, a suburb of the city of Portland, said to be about 2 1/2 miles from the Willamette river, together with 160 acres of timber land in Jackson county, about 40 miles from the railroad, and 2 miles distant from the nearest highway. That passing to Frank Lane consisted of an undivided half of the N.E. 1/4 of section 30 in township 3 south, range 5 east, of Willamette meridian, in Clackamas county, and a like estate in eight lots in different suburbs of the city of Portland. Besides alleging that the defendant A. Lane is wholly insolvent, and that there is no property, other than that mentioned, out of which the plaintiff's judgment could be satisfied, the complaint alleges: "That said conveyances from said defendants A. Lane and Jennie Lane to said defendant R.C. Danton, and each thereof, were voluntary and without consideration, and were made in trust for the defendant A. Lane, with the understanding and agreement by and between the said defendants A. Lane and Jennie Lane and defendant R.C. Danton that the said defendant R.C. Danton should hold the title to said premises in trust for the sole use and benefit of defendant A. Lane; that said conveyances from defendants A. Lane and Jennie Lane to defendant R.C Danton, and each thereof, were made with the intent on the part of the said defendants A. Lane and Jennie Lane and R.C Danton to hinder, delay, and defraud the creditors of said defendant A. Lane, including this plaintiff, of their lawful debts and demands; that said defendant R.C. Danton, at the time of said conveyance had full knowledge of such intent of said defendants A. Lane and Jennie Lane to so hinder, delay and defraud the creditors of said defendant, and that said defendant R.C. Danton, at the time of said conveyances, had full knowledge that defendant A. Lane had conveyed said premises to defendant Jennie Lane with the intent on the part of said A. Lane and Jennie Lane to hinder, delay, and defraud the creditors of defendant A. Lane." Practically identical allegations are made concerning the conveyance from A. Lane to Frank Lane. The answers traversed the allegations of the complaint in all material particulars affecting the defendants. Danton averred that he paid to A. Lane and Jennie Lane, the owners of the property, on the 9th day of November, 1910, $500 for the two lots in Vernon, then incumbered by mortgage of $3,000, which he agreed to assume and pay as a part of the purchase price thereof, and that he paid $1,500 for the land in Jackson county; both payments being in cash. He alleges that he had no notice of the matters and things alleged in this complaint wherein fraud is charged against the defendants, and that he purchased the property in good faith, without any knowledge of the claim of any other person thereto, or the claim of any fraudulent transaction of the parties connected with the title. Similar allegations are made in the answer of Frank Lane; and, in addition thereto, he goes into detail in stating what he paid for each lot and parcel of land mentioned in the complaint. Besides this, he avers that he and the defendant A. Lane were, in effect, partners in the buying and selling of real property; and, in relation to the lands in dispute, that he (Frank Lane) had advanced all of the purchase price, except $250, and all the money for the improvements on this property, except what was borrowed by them jointly and secured by mortgages on the several lots. The reply traverses the new matter in the answers. We find in the record that the defendant A. Lane, by his attorney, accepted service of a motion for entry of his default, but made no answer, and a decree was entered against him pro confesso. The circuit court, after hearing the evidence of the parties, entered a decree, in substance, upholding the deed from A. Lane to his brother Frank, and setting aside the grant to the defendant Danton. Both the plaintiff and the defendant Danton appeal.

Guy C.H. Corliss, of Portland (C.M. Idleman, of Portland, on the brief), for appellant.

C.M. White, of Portland (Farrington & Farrington, of Portland, on the brief), for respondent Ball.

J.F. Sedgwick, of Portland (C.W. Fulton, of Portland, on the brief), for respondents Lane.

BURNETT J. (after stating the facts as above).

As to the defendant Frank Lane, it appears from the testimony that he and his elder brother A. Lane were engaged together in buying and selling real property, taking joint title to that purchased. The property was mainly in lots in the outlying suburbs of Portland. In one instance, A. Lane paid $50, and Frank Lane $450, of the purchase price of $500 for a single lot. In another case, each paid one-half of the purchase price of $400. No other payments were made by A. Lane on any of the property purchased by the two brothers in common. The procedure apparently in each case was to buy a lot and mortgage it for money with which to aid in the construction of a dwelling and other improvements thereon. Besides this, in each instance, Frank Lane advanced considerable amounts from his own means, none of which was ever repaid by the elder Lane. In addition to all of this, from time to time Frank Lane had loaned his brother A. Lane different sums of money, amounting, at the time of the settlement between them, to $1,217.65.

The plaintiff, Ball, and the defendant A. Lane are brothers-in-law, having married sisters. It appears in evidence that Ball and other parties were owners of certain tracts of land in Eastern Oregon, and had secured A. Lane to obtain a purchaser for that realty. The landowners alleged that A. Lane secured purchasers for each tract at $1,600. which he collected, and paid them only $1,000 each. Six of them assigned their claims against Lane to Ball, who commenced an action against A. Lane, resulting in the judgment already mentioned. About the time the action was commenced, Frank Lane, hearing of the impending litigation, and being apprehensive that he would be involved in some way to his prejudice, sought A. Lane and demanded settlement of their partnership affairs and payment of the debt due from his brother to himself. It appears that A. Lane scouted the idea that anything could be recovered from him by the plaintiff Ball or his assignors, and refused to settle any of the affairs between himself and Frank Lane; but the latter insisted, and finally, after much persistence on his part, effected an adjustment discharging the debt of $1,217.65, and dissolving the partnership relations existing between them, and paid him $750 in cash, receiving the conveyance attacked in this suit. Frank Lane claims that the $750 covered what cash had been actually advanced by the defendant A. Lane in the purchase of the property, together with $500 for his interests in the possible profits in their realty venture. Frank Lane very candidly states that he knew about the pending litigation between Ball and his brother A. Lane, and urged settlement with his brother because he feared to be involved in the matter to his own prejudice. He stoutly denies that he took the property with intent to defraud any creditors, but solely for his own protection, and without any agreement or understanding that A. Lane should have any subsequent interest or benefit in the property. Considerable effort, by opinion evidence, was made on the part of the plaintiff to show that the property conveyed to Frank Lane by A. Lane was much greater in value than the price allowed for the same in the settlement. This was combated by Frank Lane with other evidence putting the prices lower, and by his own testimony, given in detail, of what was actually invested in each particular piece of property, including the improvements.

In respect to the property claimed by Danton, it appears that about the time the action of Ball against Lane was commenced, or soon afterwards, the defendant A. Lane conveyed to his wife the west half of the two lots in Vernon; it being their residence property. That action was pending several months; and, shortly before it was brought to trial, A. Lane represented to Danton that he (A. Lane) was in need of money, and, wishing to realize quickly, offered to sell him the timber land in Jackson county and the two lots in Vernon, which were subject to a mortgage of $3,000, as before stated. According to Danton's testimony, Lane represented to him that the timber land in Jackson county was 40 miles from a railroad, the last 2 miles of which distance had to be traveled without a trail, and that the timber was not large or first class, by any means. They dickered several days about the price to be paid; the owner first demanding $3,000 and Danton holding aloof. They finally settled upon $2,000; and the undisputed testimony of Danton and another witness, whose deposition is in evidence, shows that Danton paid A. Lane that amount in actual gold coin, and took the conveyance in dispute here.

As before stated, the decree against A. Lane went by default and, as appears in testimony, he left the state, and his whereabouts was unknown during the pendency of this suit. ...