Caseday v. Lindstrom

• Decision Date: 01 February 1904
• Parties: CASEDAY v. LINDSTROM.
• Court: Oregon Supreme Court

75 P. 222

44 Or. 309

CASEDAY v. LINDSTROM.

Supreme Court of Oregon

February 1, 1904

Appeal from Circuit Court, Clackamas County; Thomas A. McBride Judge.

Action by Minnie Caseday against P.A. Lindstrom. Judgment for plaintiff. Defendant appeals. Reversed.

Two causes of action are stated in the complaint. The first is for money lent by plaintiff to one Grondahl, which it is alleged that defendant, as the agent of plaintiff, collected and received to her use, and refused to account therefor. By the second it is stated, in effect, that on or about October 1, 1898, while plaintiff was the wife of defendant, she sold and thereafter conveyed to defendant a certain tract of realty, consisting of 45 acres, describing it; that said conveyance was at his request first made to him in the name of the Title Guarantee & Trust Company, and by it subsequently conveyed to him, and that its market value was and is $2,250; that defendant so acquired the property upon the agreement with plaintiff that besides the consideration named in the first conveyance, to wit, $1,000, he would pay therefor such additional sum as would make the total consideration equal to the market value of the property. The defendant, by his answer, interposed two separate defenses the latter of which is, in effect, that prior to October 1 1898, plaintiff and defendant were husband and wife; that plaintiff was unfaithful to defendant, and had determined to abandon him and their minor children; that defendant instituted a suit against her for divorce, with the view also, of determining their property rights, and that the effect of the transfer and conveyance of the said 45 acres of land mentioned in the complaint to the trust company by plaintiff was put in issue by the pleadings; that thereafter such proceedings were had therein that the court found that on October 1, 1898, the defendant therein (plaintiff here) conveyed to the trust company 45 acres of land for the purpose of holding 40 acres of the same for P.A. Lindstrom (this defendant), to be used by him in maintaining and educating the said minor children, Blanche Adeline Lindstrom and Herman Adolf Lindstrom, and 5 acres for himself in fee; that Lindstrom paid to defendant (plaintiff herein) a valuable consideration for said 5 acres of land, to wit, a span of horses and a wagon; that the conveyance was executed and delivered prior to October 4, 1898; that said 45 acres of land referred to in said findings are the same as described in the complaint, and that thereafter a decree was rendered in accordance with such findings. The reply, as a defense to the new matter contained in the answer, sets up that neither of the facts alleged in said answer to have been found as a finding of fact was in issue or material to any issue or issues in the suit mentioned, nor was either thereof included in any part of the conclusions of law made and filed by the court, or in the decree given and rendered therein. To support the issues thus tendered by the answer and reply, the defendant offered in evidence the judgment roll in the suit for divorce. The complaint in that suit, after setting forth the grounds relied upon for divorce, alleges that defendant is the owner of the south half of the southwest quarter of section 23, township 1 north, range 2 east, Willamette meridian, excepting 45 acres off the east end thereof, which excepted tract is described in a deed from the defendant to the Title Guarantee & Trust Company, stating where and when recorded. The prayer was (1) for a dissolution of the bonds of matrimony; (2) that plaintiff have the care and custody of the minor children, naming them; (3) that he be decreed to be the owner of one-third of the real property described; and (4) that he have his costs and disbursements, and for general relief. The defendant in such suit admitted only her ownership of the realty described, and for a separate defense alleged that on or about the 21st day of September, 1898, her husband declared he would no longer cohabit with her, and that thereupon he and she, being each owners in their own right of certain real and personal property, entered into the following agreement and settlement of their property rights, viz.: (1) She to relinquish all her right, title, and interest in certain lands and personal property of the plaintiff, said lands being situate in Comstock, Or., and at Sunnyside, in Multnomah county, of the value of $1,500; (2) also to convey to the Title Guarantee & Trust Company for her husband and the three minor children of the marriage 45 acres of land, situate in the south half of the southwest quarter of section 23, township 1 north, range 2 east, Willamette meridian; (3) he to relinquish to his wife all title and interest in one span of horses, a wagon, harness, household furniture, and one cow; and (4) further to institute a suit for and obtain a decree of divorce from her at his own expense, and thereafter to pay her $20 per month for six months. Her prayer was that, should the equities be found to be with the plaintiff therein, then that such agreement be respected, and that plaintiff be not decreed to have any right or interest in or to the land described in the complaint, but that in all other respects he be required to carry out said postnuptial agreement. The reply denied the new matter in the answer in toto. The court made findings of fact, finding in accordance with the allegations of the complaint in every particular, and in response to the issues formulated by the answer and reply, in substance, as follows: That on or about September 21, 1898, and after plaintiff informed defendant that he intended to procure a separation from her, he consulted his attorneys with relation thereto, and was induced by them, for the sake of the children, to try to live with her; that thereupon defendant conveyed to the Title Guarantee & Trust Company 45 acres of land, the same being the 45 acres excepted from the property in the complaint described, for the purpose of holding 40 acres of the same for P.A. Lindstrom, to be used by him in maintaining and educating the said minor children, Blanche Adeline and Herman Adolf Lindstrom, and 5 acres of the same in trust for P.A. Lindstrom in fee; that Lindstrom paid to defendant a valuable consideration for said 5 acres of land, to wit, a span of horses and wagon; and that said conveyance was made, executed, and delivered prior to the 4th day of October, 1898. The conclusions of law were that plaintiff was entitled to a decree (1) dissolving the bonds of matrimony; (2) giving him the care and custody of the minor children, naming them; (3) granting him an undivided one-third interest in the land described in the complaint; and (4) awarding him the costs and disbursements of the suit. The decree follows the conclusions of law, nothing being mentioned therein with reference to the conveyance of the 45 acres of land to the trust company. Every part of this roll was admitted, except the finding of fact with respect to the 45 acres, for the purpose of showing admissions of the plaintiff herein against her interest. The verdict and judgment were for plaintiff, and defendant appeals.

Wm. A. Munly and M.L. Pipes, for appellant.

H.E. Cross and Edward Mendenhall, for respondent.

WOLVERTON J. (after stating the facts).

The first question presented relates to the first cause of action. Grondahl gave testimony at the trial tending to show that he borrowed some money of the defendant, giving his note therefor, and that he paid it back to him, but failed...