First Nat. Bank of Burns v. Buckland

Decision Date08 January 1929
Citation273 P. 393,128 Or. 242
PartiesFIRST NAT. BANK OF BURNS v. BUCKLAND ET UX.
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Harney County; Dalton Biggs, Judge.

Suit by the First National Bank of Burns against Starr Buckland and wife. Decree for plaintiff, and defendants appeal. Affirmed.

This is a suit to set aside a deed given by defendant Starr Buckland to his wife, Mattie Buckland, as in fraud of plaintiff's right as a creditor and to declare plaintiff's judgment against Starr Buckland a lien on the real property. A decree was rendered in favor of plaintiff, setting aside the conveyance. Defendants appeal.

Charles W. Ellis, of Burns (C. B. McConnell, of Burns, on the brief), for appellants.

C. H Leonard and J. W. Biggs, both of Burns, for respondent.

BEAN J.

It appears that on the 22d day of November, 1921, defendant Starr Buckland was the owner of lots 17 and 18, block 13 town of Crane, Harney county, Or. For a number of years prior to that date Starr Buckland had been a borrower from the plaintiff bank, having periodically renewed the loan.

On November 22, 1921, in order to pave the way for another renewal, Starr Buckland made a financial statement to the bank, in which he placed the value of said lots at $1,500 and listed the lots as free of incumbrances. At that time Buckland owed the bank $6,778.46, the payment of which he desired to have extended for a period of six months. It appears that on November 7, 1921, the Bucklands had executed a mortgage in the sum of $350 on the Crane property, which was a lien on the property at the time this statement was made.

On December 9, 1921, Starr Buckland deeded to his wife, Mattie Buckland, the lots mentioned in Crane, upon which there was a dwelling house. The deed was recorded December 12, 1921, the grantee therein assuming the $350 mortgage upon the property. The Bucklands claim that the lots were deeded to Mrs. Buckland as part of a settlement in contemplation of a divorce, as what property was in the name of Starr Buckland, the husband, was a result of their joint efforts since their marriage in February, 1905.

Other land was conveyed to Mrs. Buckland by her husband at the same time, which is not involved in this suit. It is stated that the other land is claimed as a homestead. Therefore, no consideration will be given to the land involved in the other suit, although the testimony in one other suit involving 160 acres of land was taken upon stipulation at the same time as the testimony in the present suit.

The loan from the bank to Starr Buckland was again renewed on June 28, 1922. The bank had a chattel mortgage upon certain live stock as security for the loan. On March 23, 1923, the bank, after having sold the live stock embraced in the chattel mortgage, obtained a judgment in the circuit court for the balance due upon the loan. About $4,090 still remains unpaid. The Bucklands negotiated for a compromise settlement of this judgment on the basis of 50 cents on the dollar. This proposition was accepted by the bank, but the Bucklands failed to comply with the terms they had made. Finally, when efforts to obtain a satisfaction of the judgment had failed, on September 2, 1925, the plaintiff instituted this suit, to have the deed to the property in Crane set aside on the ground of fraud.

The defendants demurred to the complaint on the ground that a period of more than two years had elapsed between the date of the alleged fraudulent conveyance and the commencement of the suit; and that the statute of limitations had run. The demurrer of the defendants was overruled.

The answer denied the alleged fraud, and pleaded the statute of limitations. The reply denied the new matter contained in the answer, and alleged that the defendants offered to settle plaintiff's judgment, but delayed the settlement and the bringing of the action.

It appears from the record and evidence, that, while the officers of plaintiff bank may have had some knowledge of the execution of the deed from Starr Buckland to his wife, the bank had no appreciation of the fact that it was intended by the defendants, or either of them, to defraud the bank by defeating any part of their claim, until a short time before the commencement of this suit.

There was no real separation that occurred between Mr. and Mrs. Buckland. In view of all the facts, it was not vital to the bank as to which of the Bucklands held the legal title to the lots, so long as they were proposing to and endeavoring to pay the bank its claim.

Section 391, Or. L., provides, in part, in the regulation of limitations of suits, as follows: "A suit shall only be commenced within the time limited to commence an action as provided in Chapter II of title I of this Code; and a suit for the determination of any right or claim to or interest in real property shall be deemed within the limitations provided for actions for the recovery of the possession of real property. * * * In a suit upon a new promise, fraud, or mistake, the limitations shall only be deemed to commence from the making of the new promise or the discovery of the fraud or mistake."

By section 4, Or. L., the periods prescribed for the...

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1 cases
  • Evans v. Trude
    • United States
    • Oregon Supreme Court
    • January 30, 1952
    ...another, or its intent is to avoid some duty or debt due by or incumbent upon the person making the transfer. First Nat. Bank v. Buckland, 128 Or. 242, 247, 273 P. 393; Clarke v. Philomath College, 99 Or. 366, 377, 193 P. 470, 195 P. The law furnishes no test for determining the fraudulent ......

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