"This
is a suit brought by H. G. Crow against his brother E. J
Crow and his wife, Olive Crow, in the circuit court for
Douglas county. The plaintiff died before the case came on
for trial and Albert Abraham was substituted as party
plaintiff. The defendant E. J. Crow died after this appeal
was taken and his widow, Olive Crow, has been substituted
as party defendant.
"The
plaintiff, by his amended complaint filed June 9, 1909
alleges: That being indebted to Marks & Co., he made
executed, and delivered his note, on January 12, 1878, in
favor of the said firm, for the sum of $412.07 and
mortgaged all of his real property, describing it, to the
firm to secure the payment of this note. That the defendant
E. J. Crow purchased the said note and mortgage and became
the owner thereof on October 25, 1880. That on the 27th day
of October, 1880, the plaintiff herein confessed judgment
in the circuit court for Douglas county in favor of the
defendant herein, for the sum of $632.57, the same being
the amount then due on the note and mortgage given to Marks
& Co. That the plaintiff herein had some
trouble with his wife. That in order to discourage
litigation on her part, he made, executed, and delivered to
this defendant his promissory note for the sum of $6,500,
and mortgaged all of his real property to this defendant to
secure the payment of said promissory note, and he alleges
that it was executed on April 22, 1880, and further that
there was no consideration for the said note and mortgage,
except a desire to so incumber his property in order to
discourage litigation with his wife with whom he had
trouble. October 28, 1880, the plaintiff confessed judgment
in said court, in favor of the defendant, for the sum of
$7,706.80, this being the amount then due, with interest
and costs, on the $6,500 note, dated October 22, 1879. On
February 26, 1883, the plaintiff made, executed, and
delivered to the defendant his warranty deed, conveying his
real property above referred to. It is alleged that there
was no consideration for such deed, but that it was made to
more effectually avoid any financial difficulty with his
said wife. That it was verbally understood between the
parties that the defendant E. J. Crow should hold the
title, so conveyed, in trust. And that when the defendant
had been repaid what the plaintiff owed that E. J. Crow
should reconvey the premises. The plaintiff became further
indebted to the above-mentioned firm of Marks & Co., and
that firm did on the 19th day of January, 1884, procure a
judgment against the plaintiff herein, in the said court,
for the sum of $623.96. That he had no property out of
which this judgment could be made or satisfied, and that
the said firm brought a suit in the said court to set aside
the transfer of the property from the plaintiff to the
defendant and asked for an order selling the said property
to satisfy their said judgment. That in said suit the
plaintiff and the defendant in this suit were made
defendant. That after a trial of the issues in that suit
it was held by the court that the transfer from the
plaintiff to the defendant was void as to the plaintiff in
that suit, to wit, Marks & Co., and the court ordered the
premises sold to satisfy the Marks & Co. judgment taken on
January 19, 1884. This suit was appealed by
the defendants in that case to the Supreme Court. That upon
such appeal the case was tried and a decree rendered and by
which the decree of the circuit court was substantially
affirmed. That it was ordered that the premises should be
sold and that from the proceeds should be paid: First, the
amount of the costs of sale and expense of the suit;
second, the amount of the judgment in favor of E. J. Crow,
taken on October 27, 1880, on the first Marks & Co. note
and mortgage which he had bought, and at the time of the
decree amounting to $1,035.30; third, in payment of the
amount of the Marks & Co. judgment of January 19, 1884, and
amounting at the time of the decree to $747.29; and,
fourth, that the remainder, if any, be paid over to the
defendant E. J. Crow. That after the mandate was received
in the circuit court an execution was issued and the
sheriff for said county sold said real property on April 4,
1887. That the defendant E. J. Crow became the purchaser at
the said sheriff's sale. That his bid was $4,000. That
there was no redemption from the sale. And that a
sheriff's deed was issued, by the order of the said
court, confirming the said sale. That plaintiff herein
alleges that it was verbally agreed between the parties
that E. J. Crow should bid in the said property and hold
the same in trust. That he should have the right to convey
so much of it as might be necessary to reimburse him for
any sums due and owing to him. That he paid the sum of
$1,236.11 on account of the satisfaction of the Marks & Co.
suit and judgment, including costs and disbursements, but
that no other part of the said sum of $4,000 was in fact
paid. It was claimed in the complaint that the defendant E.
J. Crow had secured large sums of money from the estate of
the father and of the mother of these parties, belonging
rightfully to the plaintiff; that the plaintiff had
conveyed an undivided interest in a lot in Eugene, Or., to
the defendant in trust. The court specifically finds that
the defendant did not get any money from said estate
belonging to the plaintiff and that the conveyance of the
land at Eugene was an absolute sale, and no
further mention will be made of these matters in this case.
It is alleged that the defendant sold a portion of the
land, referred to as the 'Looking Glass Property,'
which was included in the mortgages, the deed of February
26, 1883, and also in the sheriff's sale of April 4,
1887, and that he received therefor the sum of $2,000. That
the plaintiff paid large sums to the defendant in wheat,
oats, cattle, and sheep, prior to the said sale on
execution, and that the defendant refuses to account for
the property so received. That the plaintiff refuses to
reconvey the said premises and demes that there ever was or
had been any trust agreement and claims that the confession
of judgment, deeds, and sale on execution was absolute and
without reservation. The plaintiff prayed for an
accounting; that he have a judgment in $3,000; that the
sheriff's deed, above referred to, be declared a trust
deed; and that it be declared that the defendant E. J. Crow
was holding the unsold lands in trust for the use and
benefit of the plaintiff.
"The
defendant by his answer entered a specific denial as to the
material allegations of the complaint, and by affirmative
answer sets up the taking and making of the deed of
February 26, 1883, and that the same was for a valuable
consideration. The answer in the suit brought by Marks &
Co. against H. G. Crow and E. J. Crow, above referred to,
is set out in full in the answer in this case. H. G. Crow
was the moving party in such suit; that he verified and
filed the answer and when the case was called for trial he
was sworn as a witness and testified under oath as to the
various transactions between the brothers; in that suit he
positively identified the several judgments by confession
and stated that the amounts were true and correct. That the
deed of February 26, 1883, was absolute and without
reservation, and that he surrendered possession of the
premises to E. J. Crow on that date. That after that time
when he was on the land he was there by permission only.
The defendant alleges that the plaintiff is estopped, by
reason of the said proceedings, suits, and
judgments, to which he was a party, by the execution of his
own warranty deed, by the issuance of a sheriff's deed
after confirmation of the sale in the case of Marks & Co.,
in which sale and confirmation he acquiesced, from
disputing or from denying the title of this defendant to
the premises from which he, the plaintiff, solemnly
asserted he had sold and surrendered to the defendant. That
the defendant has been and is the owner in fee simple of
all of the properties conveyed. That the possession of a
portion of the said premises by the plaintiff was by the
permission of the defendant and in order to enable the
plaintiff to have a home. That the claim of the plaintiff
set up herein is res adjudicata between these parties; that
it is stale, and as to a portion that it is barred by the
statute of...
