Butts v. Purdy

• Decision Date: 15 October 1912
• Citation: 63 Or. 150,127 P. 25
• Parties: BUTTS v. PURDY.
• Court: Oregon Supreme Court

127 P. 25

63 Or. 150

BUTTS v. PURDY.

Supreme Court of Oregon

October 15, 1912

On motion for rehearing. Motion denied.

For former opinion, see 125 P. 313.

A.S Dresser, of Portland, for appellant.

C.M. Idleman and R. Citron, both of Portland, for respondent.

BURNETT, J.

The plaintiff, in her representative capacity as administratrix of the estate of H.J. Winters, deceased, brought this suit alleging that she was in possession of certain real property belonging to the estate, and charging that the defendant claimed title thereto by virtue of a forged deed purporting to have been executed by Winters in his lifetime. She prayed for a cancellation of the deed; that her right and possession to the real property be divested from any claim or interest on behalf of the defendant by virtue of the deed that he be restrained from molesting her possession as such administratrix and for other relief. The defendant answered traversing the complaint, avowed the validity of the deed, and his right to the real property, and prayed that his title to the premises might be quieted. The new matter of the answer having been put in issue, a trial resulted in a decree in favor of the plaintiff, which was affirmed by this court in an opinion by Justice McBride, 125 P. 313.

Having retained new counsel, defendant filed a petition for rehearing, predicated upon the assumption that this is a suit by an administrator under sections 1279 and 1280, L. O.L. These provide, in substance, that whenever the assets of an estate are insufficient to satisfy the claims against it and the decedent shall in his lifetime have made or suffered a conveyance of real property, with intent to hinder, delay, or defraud his creditors, it is the duty of the executor or the administrator to petition the county court for leave to sue for a cancellation of the conveyance. It is made the duty of the county court to grant permission for the prosecution of such litigation if, upon the application, it appears that the assets are insufficient for the liquidation of the debts, and it is probable that the conveyance was fraudulent as alleged. In King v. Boyd, 4 Or. 326, these statutory requirements were construed, and it was very properly held, by this court, that the suit described in those sections could not be commenced without leave of the county court upon a proper petition for that purpose. The petition for rehearing is based almost entirely upon the doctrine announced in that case.

The later case of Ladd v. Mills, 44 Or. 224, 75 P. 141, distinguishes it, however, and holds expressly that an administrator in possession of the real property of his decedent has a right under section 516, L. O.L., to bring a suit in equity against another who claims an interest or estate in the realty in question, adverse to the administrator, for the purpose of determining such conflicting or adverse claims. Under that section, an administrator in possession of his decedent's real estate, as here alleged, has a right to the aid of a court of equity in protecting his possession against a claim based upon a fictitious deed. The present case is also distinguishable...