Geary v. Porter
| Citation | 17 Or. 465,21 P. 442 |
| Parties | GEARY v. PORTER. |
| Decision Date | 16 April 1889 |
| Court | Supreme Court of Oregon |
Appeal from circuit court, Linn county.
(Syllabus by the Court.)
A party who takes a mortgage in the form of an absolute deed is bound to observe the most scrupulous good faith, and, if questioned by a creditor of the mortgagor, or other person having an interest in knowing the fact, he must carefully and truly disclose the true nature of his security. An untruthful statement touching a material fact in relation to such security, or a failure to make a full and true disclosure when required, will postpone such security to that of a subsequent attaching creditor.
A deed intended as a mortgage, while good between the parties, is to some extent a questionable security when the interests of third persons are concerned. It tends to cover up and keep concealed the real nature of the transaction between the parties, and will therefore be closely scrutinized.
Wolverton & Irvine, for appellant.
J.K Weatherford, for respondent.
This is a suit to foreclose a mortgage given in the form of an absolute deed. A copy of the instrument is attached to the complaint. It is for the consideration of one dollar, and purports to convey to the plaintiff, with covenants of general warranty, a fee-simple title to the granted premises. It was executed on the 29th day of December, 1886, and recorded the same day in the record of deeds of Linn county. The complaint avers, among other things, that at the time of the execution of this instrument Nancy J. Sippy was indebted to the firm of Smith & Geary in the sum of $188.25, and at the same time she was also indebted to Koontz & Lame in the sum of $139.02, and that, in consideration that the plaintiff would assume the payment of the two claims, she executed and delivered to him the said conveyance. It is then stated that said conveyance was intended as a mortgage, and a parol defeasance is alleged. The respondent, Martha A Porter, is joined as defendant because it is alleged she has or claims some interest in the premises by way of judgment lien, but that, whatever her interest, the same is subsequent and subject to the plaintiff's lien. The indebtedness set out in the complaint is denied by the answer, or that the plaintiff assumed the same. The answer alleges for a further and separate defense that on the 14th day of May, 1887, one T.J. Black commenced an action in the circuit court of Linn county to recover of Sippy the sum of $150.62, and caused a writ of attachment to be duly issued in said action, and the premises in controversy to be attached; that on the 15th day of March, 1888, judgment in said action was duly rendered and given for the sum of $64.66, with costs and disbursements taxed at $65.50; that thereafter said Black duly assigned said judgment to the defendant, Porter, who caused an execution to issue on said judgment, and the attached premises to be sold by virtue of said execution on the 12th day of May, 1888, and that at such sale she became the purchaser thereof. It is then alleged that at and during all of said times Sippy was insolvent, and that after she became indebted to Black she conveyed the land in controversy to the plaintiff, with the intent to hinder, delay, and defraud said Black and other creditors, and that the plaintiff had notice of such fraudulent intent at the time, and that he paid nothing for said property, and that this defendant has been thereby hindered and delayed, etc. It is then alleged that the plaintiff has been in the possession of said premises since the 29th of December, 1886, receiving the rents and profits thereof to the amount of $180, which it is alleged ought to be credited on any lawful claim he may appear to have. A reply put the new matter in the answer at issue, except the claim of Black, the institution of the action by him against Sippy, the attachment of the premises in controversy, the assignment of the judgment to Porter, and the sale and purchase thereof by her. The cause was then referred, and the evidence taken in writing, and upon a final hearing in the court...
To continue reading
Request your trial
-
Security Savings & Trust Co. v. Loewenberg
...disclose the true nature of his security, his rights will be postponed to those of subsequent attaching creditors or purchasers. Geary v. Porter, supra. Now, in case, the deed from Loewenberg to the plaintiff corporation did not give notice of the nature of the real transaction, nor of the ......
-
Safeco Title Ins. Co. of Oregon v. Kirtley
...appropriate. Stan Wiley v. Berg, 282 Or. 9, 21, 578 P.2d 384 (1978). The exception was recognized by the Supreme Court in Geary v. Porter, 17 Or. 465, 21 P. 442 (1889). It is obvious from the trial judge's comments that he did not find William Kirtley's testimony regarding the loan to Hixso......