Bender v. Bender

• Decision Date: 10 January 1887
• Citation: 12 P. 713,14 Or. 353
• Parties: BENDER v. BENDER.
• Court: Oregon Supreme Court

12 P. 713

14 Or. 353

BENDER v. BENDER.

Supreme Court of Oregon

January 10, 1887

Appeal from Clatsop county.

F.D. Winton, for appellant, J.F. Bender.

C.W Fulton, for respondent, C.C. Bender.

STRAHAN J.

This is a suit for a divorce. It was referred to J.Q.A. Bowlby, Esq. to take the evidence and report the same, with his findings of fact thereon, to the court. Upon the filing of the referee's report, the same, having been excepted to by the plaintiff, was set aside, and the court proceeded to find the facts, and make a final decree in said suit. The findings of fact by the court touching the ground for divorce were that the plaintiff had failed to establish by the evidence any sufficient cause for a divorce, and that the conduct of each of the parties towards the other had been improper. The court, therefore, dismissed the complaint, so far as concerned the prayer for a divorce, from which part of the decree no appeal has been taken, and no question touching the divorce is now before us on this record.

The plaintiff's complaint, after stating her causes for a divorce, further alleges, in substance, that prior to her marriage with the defendant she was the owner in her own right of an undivided half of about 160 acres of land, in Clatsop county, which land is particularly described; and that on the _______ day of _______, 187__, the defendant, by employing threats, solicitations, and undue influence, caused the plaintiff to convey, or attempt to convey, to him her interest in said premises, and that on said day she executed and delivered to defendant a deed which purported to convey to him her undivided half interest in said land; that said deed was executed without consideration, while said marriage relation existed; and that the defendant is the owner of the other half of said tract of land, and of personal property of the value of $100. All of the allegations of the complaint are specifically denied by the answer. The court found, as a fact, that out of the joint earnings of the plaintiff and defendant the real property now in controversy was purchased that said real property was deeded to the plaintiff in her own name, and afterwards, at the request of the defendant, was deeded to him by the plaintiff without consideration, in order that he might hold the same in his own name, and thereby entitle him to become a legal voter in his school-district, where said property was situated. Upon this finding of fact the court made a decree requiring the defendant, within 60 days from the date of the decree, to convey said property to the plaintiff; and, in default of such conveyance, then that said decree operate to transfer to the plaintiff said real property, and stand in place of said deed. From this part of the decree this appeal is taken.

The part of the complaint relating...