Barr v. Minto

• Decision Date: 01 July 1913
• Citation: 65 Or. 522,133 P. 639
• Parties: BARR v. MINTO, Sheriff, et al.
• Court: Oregon Supreme Court

133 P. 639

65 Or. 522

BARR v. MINTO, Sheriff, et al.

Supreme Court of Oregon

July 1, 1913

Department 1.

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Action by Theo. M. Barr against H.P. Minto, as sheriff of Marion county, and the Falls City Lumber Company. Judgment for plaintiff, and defendants appeal. Reversed.

This is a suit to remove a cloud from plaintiff's title. The complaint alleges that plaintiff ever since the 8th day of September, 1911, has been and still is the bona fide owner of a certain five-acre tract of land, which is describe therein and that the said tract is not in the actual possession of another. It further alleges that about October 26, 1911, the defendant Falls City Lumber Company caused to be issued out of the circuit court of Marion county an execution upon a judgment rendered in its favor against Herman W. Barr, Leo Barr, F.J. Barr, John Dale, and Henry Semke, for the sum of $1,000 and placed it in the hands of H.P. Minto, sheriff of Marion county, who levied the same upon the lands mentioned in the complaint as the property of Herman W. Barr; that said defendant now threatens to sell the same to satisfy said judgment and execution, and will do so if not enjoined; that Herman W. Barr has no right, title, or interest in said premises, but that plaintiff is the bona fide owner thereof. Then follows a prayer for a decree setting aside said execution and adjudging that defendants have no lien, claim nor interest in the land. The answer admits the levy by the sheriff upon the land in question, and the intention to sell the same upon the execution mentioned in the complaint, but denies that plaintiff is or ever was the owner thereof, or has any claim therein, except as thereafter stated in the answer. There is a further answer and defense setting up the fact that on June 11, 1911, Herman W. Barr, Leo Barr, F.J Barr, John Dale, and Henry Semke executed a promissory note in favor of the defendant Falls City Lumber Company for the sum of $1000, with interest at 8 per cent. per annum from date, payable 60 days after date, together with reasonable attorney's fees in case of suit; that on the 9th day of September, 1911, said defendant began an action on said note issued a writ of attachment, and attached the property described in the complaint as the property of Herman W. Barr; that on October 16, 1911, a judgment was duly rendered against Herman W. Barr and the other makers of said note for the sum of $1,123.15; that on the 26th day of October the Falls City Lumber Company caused an execution to issue on said judgment, directing the defendant Minto as sheriff to sell the said attached property to satisfy the same; that on the 8th day of September, 1911, defendant Herman W. Barr and his wife, for the purpose of hindering, delaying, and defrauding the Falls City Lumber Company and his other creditors, made, executed, and delivered to plaintiff a pretended deed purporting to convey the lands mentioned in the complaint for the consideration of $800, but that the conveyance was voluntary, was without any actual consideration, and was accepted by plaintiff with knowledge and notice of its fraudulent character and with the intent to assist Herman W. Barr to defraud his creditors, including plaintiff; that all the makers of the promissory note are insolvent, and that they own no property out of which said judgment can be collected except the lands mentioned in plaintiff's complaint. The answer concludes with a prayer that the conveyance from Herman W. Barr and wife to Theo. M. Barr be declared fraudulent and void as to the defendants, and that it be canceled and set aside. The reply was a general denial of the new matter in defendant's answer.

Jas. G. Heltzel and Geo. G. Bingham, both of Salem (Roy Morgan, of Brooks, on the brief), for appellants.

Frank Holmes, of Salem, for respondent.

McBRIDE C.J. (after stating the facts as above).

The first question presented is as to the sufficiency of the pleadings. It is contended by the plaintiff that, while in a creditor's bill to set aside a fraudulent conveyance it is necessary for the grantee under such conveyance to...