Durkin v. Ward

• Decision Date: 08 July 1913
• Parties: DURKIN v. WARD.
• Court: Oregon Supreme Court

133 P. 345

66 Or. 335

DURKIN v. WARD.

Supreme Court of Oregon

July 8, 1913

Department 2.

Appeal from Circuit Court, Lincoln County; Lawrence T. Harris Judge.

Suit by K.A. Durkin against Eugene S. Ward. From a decree for defendant, plaintiff appeals. Reversed and decree entered for plaintiff.

This is a suit to quiet title to a quarter section of timber land. Plaintiff appeals from a decree in favor of defendant. Plaintiff alleges that she is the owner in fee simple and entitled to the possession of certain real estate situated in Lincoln county, Or. Defendant denies the allegations of the complaint, and alleges that he is the owner in fee simple of the land.

James McCain and J.E. Burdett, both of McMinnville (McCain, Vinton & Galloway, on the brief), for appellant.

Lester W. Humphreys, of Portland, for respondent.

BEAN, J.

Plaintiff and defendant commenced to live together as husband and wife in 1903, and so resided, without being married, until February, 1910. On the 25th day of April, 1906, defendant by warranty deed conveyed the premises in question to plaintiff the deed being duly recorded in Lincoln county May 2, 1906. This deed recites a consideration of "one ($1.00) and other valuable consideration." The plaintiff claims title by virtue of this deed. A certified copy of the record of a deed of the land from plaintiff to defendant, purporting to have been executed on the 23d day of December, 1907, to have been witnessed by W.S. King and D.M. Donaugh, and acknowledged before the latter on that date, was offered in evidence by plaintiff. This deed was recorded in Lincoln county March 15, 1910. Plaintiff asserts that it is a forgery and void. She states that she signed a deed of the land to defendant on September 17, 1906, in the presence of S.W. King and D.M. Donaugh, and acknowledged the same before Mr Donaugh; that the deed was signed for the purpose of aiding defendant's financial standing in connection with a certain logging contract which he had; that soon after signing this deed she went East for a time and left the same for the defendant to make use of in case of necessity, but that the logging contract was abandoned and the deed never used nor delivered to the defendant; that she destroyed it about 1908. The defendant's version of the matter is that he executed the deed of April, 1906, as security for a loan to him of about $500, in order to pay a demand upon which action against him was instituted and an attachment levied upon the land by Roebling & Son; that in December, 1907, he paid plaintiff the loan, and that she reconveyed the land by the deed in question; that after taking this deed he placed it in his trunk, to which plaintiff had access where it remained until he sent it to Lincoln county for record. Upon the return of the deed defendant states that he erased the certificate of the recording officer and replaced the deed in his trunk, from which it disappeared, and that it cannot be produced. S.W. King, a prominent business man of Portland, who is supposed to be the witness named upon the copy of the deed as "W.S. King," testified that he had no recollection of witnessing a deed either of that date or of September, 1906. Mr. D.M. Donaugh, an attorney of Portland, was also called as a witness. He, too, had no recollection of the transaction; therefore their testimony sheds no light upon the matter. The error in name of S.W. King remains a mystery.

The plaintiff asserts that she loaned various sums to the defendant and paid sundry accounts for him; that in 1909 they went to California for the benefit of her health, where the defendant left her and returned to Oregon a short time before the deed in question was recorded; that they have not lived together since then. The deed of April 25, 1906, conveyed the title to the land to the plaintiff. While it is mentioned incidentally that this was given as security for a loan, there is no issue of that kind in this case. This is not a suit to declare the deed of April, 1906, a mortgage. Stuart v. Lowry, 49 Minn. 91, 51 N.W. 662; Merrill v. Dearing, 47 Minn. 137, 49 N.W. 693. The testimony shows that the plaintiff is the owner in fee of the disputed real estate, unless the testimony of the defendant establishes that there was a reconveyance of the land from the plaintiff to the defendant. Before the estrangement between the parties they were very friendly, and transacted their business in a lax manner Evidently they expected to marry. Since that time their attitude towards each other has been the reverse.

We have for consideration as to the deed from plaintiff to defendant of December 23, 1907, the statement of the latter, together with a certified copy of the record of the deed, and the testimony of one A.B. Cropp that he saw a deed in...