Clarke v. Philomath College

Citation193 P. 470,99 Or. 366
PartiesCLARKE v. PHILOMATH COLLEGE ET AL.
Decision Date16 November 1920
CourtSupreme Court of Oregon

Department 2.

Appeal from Circuit Court, Benton County; G. F. Skipworth, Judge.

Suit by Arthur Clarke, as administrator cum testamento annexo of the estate of Samuel McLain, against Philomath College and others. From a decree for defendants, plaintiff appeals. Reversed, with directions.

This is a suit commenced by the plaintiff against the defendants to set aside three deeds and a transfer of personal property made by Samuel McLain to the defendant Philomath College, a United Brethren institution, whereby the entire estate of plaintiff's intestate, Samuel McLain, was transferred during the latter years of his life to the defendant Philomath College, leaving nothing for the payment of his creditors. The circuit court found in favor of the defendants, and dismissed plaintiff's complaint, from which decree plaintiff appeals.

Samuel McLain, for more than 40 years prior to his death, resided near the town of Philomath, in Benton county, Or., and during all of that time was an officer of the defendant Philomath College, being one of the board of directors, and had an interest in the success and welfare of the college. He was a single man, having no near relatives living at the time of his death. He lived alone on a portion of the land in controversy. He died in Benton county, Or., in April, 1910 leaving a last will and testament, dated June 21, 1907 devising and bequeathing all of his property to the defendant Philomath College. The will was probated in that county, and James R. Parker was appointed executor thereof according to the provisions of the will, and thereafter duly qualified as such executor. Afterwards Mr. Parker resigned as executor and on November 8, 1913, plaintiff, Arthur Clarke, was duly appointed as administrator with the will annexed of the estate of Samuel McLain, deceased, and duly qualified.

The defendants J. T. Warman. B. E. Emmerick, J. E. Henkle, G. A Bennett, W. W. Rosbraugh, R. C. Von Lehe, W. M. Bell, R. W Jones, Jackson White, G. E. McDonald, C. C. Bell, Joseph Means, H. B. Borks, and E. H. Castle constitute the board of trustees of the defendant college, a corporation under the title of Board of Trustees of Philomath College, with perpetual succession and full power to manage the affairs of, and receive gifts of money and property for the use of, defendant Philomath College. The other defendants are purchasers of tracts of the land involved. The defendant the Home Missionary Society of United Brethren in Christ is a corporation organized under the laws of the state of Ohio. The assets of the estate of Samuel McLain consist of $45.45 cash, there being no other assets.

On February 28, 1904, J. W. McLain, with Samuel McLain as surety, executed and delivered to J. W. Ingle a promissory note for $2,500, due on or before one year after date. with interest at 8 per cent. per annum. Ingle had no notice or knowledge of the execution of the deed to parcels A and B until long after the execution of the note. On February 6, 1911, J. W. Ingle instituted an action on the note, in the circuit court for Benton county, against James R. Parker, as the executor of the estate of Samuel McLain, deceased. On November 29, 1912, J. W. Ingle recovered judgment against James R. Parker, as the executor of the estate, in the sum of $4,110, with interest thereon at the rate of 8 per cent. per annum from that date, and for $150 attorney's fees and costs taxed at $151.30, with interest upon each of the two last-named sums at the rate of 6 per cent. per annum from the date of judgment. This judgment remains unsatisfied.

On August 3, 1899, Samuel McLain was, and had been for a long time prior thereto, the owner in fee simple of certain real estate situated in Benton county, Or., designated in the complaint as "parcel A," described as follows, to wit:

Farm lot No. seven (7), containing eleven (11) acres, and farm lot No. eight (8), containing sixteen and one-quarter (16 1/4) acres more or less, all situated in the addition to the city of Philomath.

On that date McLain executed to the trustees of Philomath College a deed conveying the land described as parcel A, reserving unto himself the entire possession, use, and profits of the land during his natural life. That deed was not recorded until January 26, 1906. The conveyance of parcel A was a voluntary conveyance.

On November 6, 1900, Samuel McLain was, and had been for a long time before then, the owner in fee simple of certain real estate in Benton county, Or., referred to in the record as "parcel B," described as follows, to wit:

Beginning at a point in the center of the Alsea road southwest of the Philomath College camp ground and eighty rods (80) along the line of the center of said road from the center of Marys river, where county bridge crosses said river; thence in a westerly direction sixty-two (62) rods to a point sixty-five (65) rods south of Marys river; thence northerly to a point in the center of Marys river one hundred and four (104) rods westerly from point of beginning; thence following the meanderings of said river in a westerly direction to the northeast corner of the Van Cleave place; thence southerly along the east line of the Van Cleave and Van Blaricom places to the center of the Big Elk wagon road; thence easterly along the center of said road to the center of the Alsea wagon road; thence northerly forty (40) rods to point of beginning. Also all that parcel of real estate lying north of Marys river and west of Philomath College camp ground, bounded as follows: Beginning at center of Marys river at southwest corner of Philomath College camp ground; thence northwest twenty-four (24) rods; thence west thirty-six (36) rods; thence south to center of Marys river; thence along said river to point of beginning--all the above-described property being situated in the county of Benton and state of Oregon, and containing sixty (60) acres, more or less.

On that date McLain executed to the trustees of Philomath College a conveyance of the land described as parcel B, reserving unto himself the entire possession, use, control, rents, and profits of the land during his natural life. This deed was not recorded until January 26, 1906. The conveyance of parcel B was also a voluntary conveyance.

On June 20, 1907, McLain was, and had been for a long time prior thereto, the owner in fee simple of certain real estate referred to in the record as "parcel C," described as follows, to wit:

Beginning at a point in the center of the Alsea road and in the center of Marys river, where the Alsea road crosses Marys river at the southeast corner of Philomath College camp ground; thence along center of the Alsea road southwesterly to a point eighty (80) rods from point of beginning; thence in a westerly direction sixty-two (62) rods to a point sixty-five (65) rods in a southerly direction from Marys river; thence northerly to a point in the center of Marys river 104 rods westerly from point of beginning; thence following the meanderings of Marys river in an easterly direction to point of beginning, containing 40 acres, more or less.

On that date he executed and delivered to the trustees of Philomath College the land described as parcel C, reserving to himself the entire possession, control, rents, and profits of the land. This deed was duly recorded on June 21, 1907. The consideration expressed in the third deed was $1,000.

In its amended answer the defendant Philomath College claims the consideration for tract C was as follows:

                            Indebtedness .........................................
                          
                            $ 59 05
                          
                            Subscription to building fund .........................
                          
                            100 00
                          
                            Cash ..................................................
                          
                            401 17
                          
                            Note of Samuel McLain and L. C. Crow ..................
                          
                            609 40
                          
                            Indebtedness of J. M. and R. A. Kitson and McLain .....
                          
                            400 00
                          
                            
                          
                            _________
                          
                            Total ...........................................
                          
                            $2,014 93
                          
                

It developed upon the hearing that at the time of the execution of the deed for tract C another deed was executed, conveying to the college 160 acres in Lincoln county. There is nothing in the record as to the value of this land. Shortly after the execution of the conveyance for tract C and the Lincoln county land, the college paid an indebtedness of $401.17 from McLain to J. W. Ingle, based upon a promissory note for $300, dated July, 1903.

Soon after McLain's death, in 1910, the college platted the tracts B and C into acreage tracts, at an expense of about $100. Tract C comprises lots 1, 2, 6, 7, 8, and 9, the major part of 14 and parts of 3, 5, and 13. This was largely bottom land, and was the most valuable, comprising the improvements. On November 17, 1910, the college executed an option agreement in favor of Henry Ambler, authorizing him to sell 141 acres for the consideration of an average of $100 per acre, including the Samuel McLain home place, consisting of 111 acres, the McLain town lots 7 and 8, consisting of 24 1/2 acres, and other land not involved herein. Under the terms of the agreement Ambler had the privilege to sell any surveyed division of the lands on the net terms to the college, as per the following graded prices: McLain home place, lots 1, 7, 8 14, $125 per acre; lots 2, 6, 9, 13, 4, 11, $100 per acre; lots 15, 16, 17, and 18, $65 per acre; subdivisions of Philomath town lots 7 and 8, $120 per acre. It was agreed that, upon sales being...

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2 cases
  • Williams v. Ingle
    • United States
    • Supreme Court of Oregon
    • February 15, 1921
  • Clarke v. Philomath College
    • United States
    • Supreme Court of Oregon
    • February 23, 1921
    ...Benton County; G. F. Skipworth, Judge. On petition for rehearing. Former opinion modified, and petition denied. For former opinion, see 193 P. 470. E. Bryson, of Eugene (Smith & Bryson, of Eugene, on the brief), for appellant. J. K. Weatherford, of Albany, and Jay L. Lewis, of Corvallis (We......

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