Boyd v. Coleman
| Decision Date | 03 January 1931 |
| Citation | 294 P. 604,135 Or. 60 |
| Parties | BOYD v. COLEMAN ET AL. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.
Suit by Ethel A. Boyd, as administratrix of the estate of Daniel Boyd, deceased, against H. S. Coleman, also known as Harry Coleman, and others. From a decree for plaintiff and from an order denying defendants' motion for a dismissal defendants appeal.
Affirmed.
This case was begun by the plaintiff on March 14, 1930, by filing a complaint in equity in the circuit court of the state of Oregon for Wallowa county, in which plaintiff sought to set aside four certain chattel mortgages given by Harry Coleman to L. E. Thornburgh as fraudulent to plaintiff, and to subject the proceeds of sale of personal property in the hands of Edgar Marvin, one of the defendants, to the payment of a judgment held by plaintiff against one Leonard Hammack and H. S. Coleman. The first of the mortgages was given November 27, 1927, the second on July 21, 1928, the third on November 17, 1928, and the fourth on June 19, 1929. The judgment owned by the plaintiff was obtained in the circuit court of the state of Oregon, on November 7, 1927. On February 20, 1930, there was a sale of personal property part of which was listed in the various mortgages. An execution was issued on the judgment held by plaintiff on February 20, 1930, and Edgar Marvin, one of the defendants was served as garnishee, who made answer showing nothing in his hands that belonged to Coleman. The complaint is in the usual form for such complaints.
The defendants filed an answer to this complaint, admitting the judgment held by plaintiff and the execution and delivery of the four mortgages mentioned in plaintiff's complaint but denying the fraudulent character of said mortgages. Defendants, answering the complaint further, alleged a bona fide existing debt from Coleman to Thornburgh, and that, in order to pay this debt, Coleman, before the sale of property and before the service of plaintiff's execution upon Edgar Marvin as garnishee, for a valuable consideration transferred all of the said personal property to the defendant Thornburgh.
The plaintiff filed a reply to this answer, denying the allegations of the defendants' answer, whereupon the cause was tried on July 8, 1930, resulting in a decree for the plaintiff, from which decree, and from the order denying defendants' motion for a dismissal at the conclusion of plaintiff's testimony, the defendants appeal.
Max Wilson, of Joseph, for appellants.
George W. Cherry, of Enterprise (J. A. Burleigh, of Enterprise, on the brief), for respondent.
KELLY, J. (after stating the facts as above).
The question of fraudulent intent being one of fact (section 63-510, Or. C. 1930, section 10173, O. L.), we refer to the testimony for its solution. One of the mortgages in suit secured a note in the principal sum of $2,500. This note and the mortgage securing it was dated November 21, 1927. The note bears an indorsement, dated November 21, 1927, in the sum of $1,266.50. Defendant Thornburgh was unable to explain why he gave defendant Coleman the credit evidenced by this indorsement. Thornburgh identified Coleman's note for $650 in favor of the Wallowa National Bank, dated February 14, 1927, and its renewal note for $682.50, dated August 13, 1927, together with Thornburgh's check dated November 21, 1927, in the sum of $718.15 with which this renewal note was paid. Thornburgh identified Coleman's note for $450 in favor of the Wallowa National Bank and Thornburgh's check for $451.50 with which same was paid. He also testified that he paid a note which Coleman owed the First Bank of Joseph, "or the Laws," in the sum of $303 or thereabouts. In identifying these items of Coleman's indebtedness, Thornburgh testified that his payment of them constituted part of the consideration for the $2,500 mortgage and note in suit. Such explanation on Thornburgh's part, as appears in the record, of any further consideration for this mortgage, is uncertain, indefinite, and unsatisfactory.
Defendant Coleman testified, in effect, that the consideration for such mortgage was the payment by Thornburgh of a $700 note, a $450 note, and a $275 note, and the...
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Evans v. Trude
...of the grantees to keep a record of the dates of the loans or of the amounts claimed to have been lent to the grantor, Boyd v. Coleman, 135 Or. 60, 64, 294 P. 604, are further indicia of the want of good On the basis of the record here, we are compelled to reject the assertion that there wa......