Brown v. Whittington

• Decision Date: 15 April 1901
• Citation: 64 P. 649,39 Or. 300
• Parties: BROWN et al. v. WHITTINGTON et ux.
• Court: Oregon Supreme Court

64 P. 649

39 Or. 300

BROWN et al. v. WHITTINGTON et ux.

Supreme Court of Oregon

April 15, 1901

Appeal from circuit court, Coos county; J.C. Fullerton, Judge.

Suit by James C. Brown and another against W.W. Whittington and wife. From a decree in favor of plaintiffs, defendants appeal. Affirmed.

This is a suit to cancel and set aside a conveyance of real property from the defendant W.W. Whittington to his wife on the ground that it is void as to creditors. On October 5, 1889 Whittington purchased and took in his own name a deed for 160 acres of land in Coos county, upon which he has since resided with his family. On April 12, 1890, he purchased of the plaintiff Brown one lot in Myrtle Point for $200, giving his note therefor, due two years after date, and received from Brown a bond for a deed. When the note fell due, Whittington was unable to pay it, and gave Brown a new note for $250, in which the plaintiff Shull, at his solicitation, joined as surety. Thereupon Brown, at Whittington's request, made a deed of the lot to Shull, which was afterwards placed of record. On the same day, and immediately after the execution of the note, Whittington deeded his farm, which was practically all the property he owned, to his wife, for an expressed consideration of $1. When the $250 note became due Whittington refused to pay it, whereupon Shull deposited the amount due with Brown, with an understanding and agreement that Brown should prosecute an action on the note in his own name against Whittington, the principal, and should pay over to Shull any money he might be able to collect. In pursuance of this agreement, Brown commenced an action against both Whittington and Shull on March 18, 1893, and on May 1st following recovered a judgment against them for the face of the note and interest. Thereafter execution was issued on the judgment, and the property Whittington had previously conveyed to his wife was levied upon and sold to Brown. This sale was confirmed May 18, 1895, and a sheriff's deed made to Brown on April 15, 1897. Four days later this suit was commenced by Brown and Shull jointly to set aside the deed from Whittington to his wife as fraudulent and void as to creditors, and especially as to Shull. The complaint sets out in detail the facts heretofore stated. The answer denies that the deed from Whittington to his wife was without consideration, or made for the purpose of hindering delaying, or defrauding creditors, and alleges that in 1888 Mrs. Whittington was the owner of a farm in Jackson county which she sold for $3,000, with which her husband purchased the premises in controversy, but by mistake the deed was made in his name; that she did not discover the error until April, 1892, when she immediately demanded that it be corrected, and the property conveyed to her. The answer also alleges the execution by Brown of a deed to Shull for the Myrtle Point lot, and that it was received by Shull to secure him from liability on Whittington's note, with the agreement that, if Whittington was not able to pay the note at maturity, Shull would take the lot, and make the payment himself. The reply put in issue the new matter alleged in the answer, and upon trial a decree was rendered in favor of plaintiffs, from which the defendants appeal.

John F. Hall, for appellants.

S.H. Hazard, for respondents.

BEAN C.J. (after stating the facts).

It is insisted at the outset that the plaintiffs cannot recover because the complaint admits that the note upon which judgment against Whittington and Shull was recovered by Brown was paid...