Belle v. Brown

• Decision Date: 30 July 1900
• Citation: 37 Or. 588,61 P. 1024
• Parties: BELLE et al. v. BROWN et al.
• Court: Oregon Supreme Court

61 P. 1024

37 Or. 588

BELLE et al. v. BROWN et al.

Supreme Court of Oregon

July 30, 1900

Appeal from circuit court, Marion county; R.P. Boise, Judge.

Suit by Nancy S. Belle and others against Charles A. Brown and others.From a decree in favor of plaintiffs, defendants appeal.Reversed.

This is a suit to establish and foreclose an alleged equitable lien upon certain real property.The facts are that Charles Swegle conveyed to the defendants Charles A. and Frank E. Brown about 50 acres of land in Marion county, Or., stipulating in the deeds thereto that the premises so granted were intended as advancements to them equal to the sum of $2,500, as the representatives of his deceased daughter.The said grantor died intestate, leaving surviving him Lucinda Swegle, his widow, and the plaintiffs, Nancy S. Belle, George SwegleM.W. Swegle, Olevia Holmes, Emma Bender, and Albert Swegle his children and the defendants, his grandsons, as his heirs.His estate having been settled, the defendants secured a distributive share of the personal property thereof, without the knowledge of the administrator or the heirs that any advancements had been made; and a suit having been instituted in the circuit court for said county to partition the real property therein of which Swegle died seised, and neither party having any knowledge of such advancements, a decree was rendered setting off to each of the plaintiffs and defendants certain of said lands in severalty, and to the widow, for her natural life, 125.01 acres as her dower; but, she having died, the land so admeasured to her reverted to the parties herein.After Swegle's death there was found with his papers a deed to his daughter Emma Bender for 80.25 acres of land in said county which was not partitioned in said suit but, the deed never having been delivered, she, with her husband, executed a deed releasing to each of her brothers and sisters an undivided 1/6, and to each of the defendants an undivided 1/12, interest in said tract.The plaintiffs having discovered that the conveyances made by their father to the defendants were intended as advancements, commenced this suit, alleging, in effect, that at the time the partition suit was instituted the defendants, well knowing that such advancements had been made, wrongfully concealed such fact, with intent to defraud the plaintiffs, who had no knowledge thereof; that the defendants have never paid any part of such advancements, 6/7 of which is due the plaintiffs, who pray that the sum of $2,142.85 be decreed a lien upon the defendants' interest in the lands so held by them as tenants in common and in severalty, and that said premises be sold to satisfy said lien.The answer, having denied the material allegations of the complaint, avers, in substance, that plaintiffs ought not to be permitted to say that the defendants had not paid the advances made to them, or that a lien should be impressed on their lands as security therefor, for that Charles Swegle, their grandfather, conveyed to each of the plaintiffs, in severalty, lands, for various considerations, all of which exceeded the sum of $2,500, no part of which had ever been paid by either of them, and that in administering on the decedent's estate no account was taken of the advances made to the defendants, for the reason that there was due from each of the plaintiffs to said estate various sums of money, which offset the advances made to the defendants, in consequence of which the personal property of the estate was distributed equally among the heirs; that plaintiffs ought not to be permitted to say that the defendants had not paid any part of said advances, for that, in a suit instituted in the circuit court for said county, in which Lucinda Swegle, Nancy S. Belle, and the said Charles A. Brown and Frank E. Brown were plaintiffs, and the plaintiffs herein, George Swegle, Olevia Holmes, M.W. Swegle, Emma Bender, and Albert Swegle, were defendants, a decree was rendered partitioning to the plaintiffs and to the defendants all the real property of which Charles Swegle died seised, except the land set off to Lucinda Swegle as her dower, and that described in the deed to Emma Bender, which decree was never appealed from or modified, and is now in full force and effect; that each of the defendants owns an undivided 1/12 of the premises so conveyed by Emma Bender to her co-heirs, the title to which they claim under and by virtue of her deed.The court having sustained a demurrer to the new matter set out in the answer, a trial was had upon the remaining issues, resulting in a decree as prayed for, but directing that the unpartitioned lands be first sold to satisfy the lien, and that, if the amount realized therefrom should be insufficient to pay the sum of $2,142.85, the real property of the defendants owned in severalty be sold to satisfy such deficiency, from which decree the defendants appeal.

Geo. G. Bingham, for appellants.

W.T. Slater and Tilmon Ford, for respondents.

MOORE J.(after stating the facts).

It is contended by defendants' counsel that the estate of Charles Swegle having been fully administered upon, and the personal assets thereof equally distributed to his heirs, and the real property of which he died seised partitioned in a suit instituted for that purpose, the advancements made by the defendants' ancestor have thus become res judicata and, this being so, the court erred in sustaining a demurrer to the estoppels alleged in the answer.Our statute upon the subject of advancements, so far as applicable herein, is as follows: "Any property, real or personal, that may have been given by the intestate in his lifetime as an advancement to any child, or other lineal descendant, shall be considered a part of the intestate's estate, so far as regards the division and distribution thereof among his issue, and shall be taken by such child, or other descendant, towards his share of the intestate's estate."Hill'sAnn.Laws Or. § 3104."If the amount of such advancement shall exceed the share of the heir so advanced, such heir shall be excluded from any further share or portion in the division or distribution of the estate, but shall not be required to refund any part of such advancement; and if the amount so received shall be less than his share, such heir shall be entitled to so much more as will give him his full share or portion of the estate of the intestate."Id.§ 3105.The testimony shows that when the personal property of the decedent's estate was distributed, and also when the real property of which he died seised was partitioned to the heirs, neither of them had actual knowledge that the deeds executed to defendants by their grandfather contained an expression that the grants so made were intended as advancements.The plaintiffs, by reason of such want of knowledge, having failed to charge the defendants with such advancements upon the settlement of said estate or in the partition suit, the question is, does the order of distribution in the probate proceedings, or the decree in...