German Savings & Loan Soc. v. De Lashmutt

• Decision Date: 04 September 1897
• Citation: 83 F. 33
• Parties: GERMAN SAVINGS & LOAN SOC. v. DE LASHMUTT et al. STARR et al. v. GERMAN SAVINGS & LOAN SOC. et al.
• Court: U.S. District Court — District of Oregon

83 F. 33

GERMAN SAVINGS & LOAN SOC. v. DE LASHMUTT et al.

STARR et al. v. GERMAN SAVINGS & LOAN SOC. et al.

United States Circuit Court, D. Oregon.

September 4, 1897

Martin L. Pipes, for complainants in cross bill.

Milton W. Smith and Walter S. Perry, for defendants in cross bill.

BELLINGER District Judge.

This is a suit by the German Savings & Loan Society to foreclose a mortgage, given by the defendants De Lashmutt and wife, upon certain real estate acquired by De Lashmutt by deed dated June 7, 1887, from Bridget Lavin, the mother of the defendant Starr. Starr appeared, and filed his cross bill, in which he alleges that on and long prior to June 7, 1887, De Lashmutt was the agent and confidential adviser of Bridget Lavin in respect to the management of her property, of which she owned a large amount, both real and personal; and, as such agent he had long before said date collected the rents and profits of such property and cared for and managed the same as her agent. This allegation is admitted by De Lashmutt. The cross bill further alleges that Bridget Lavin was a person of weak mind, and was greatly addicted to the use of intoxicating liquor and morphine, and at times was insane, and, particularly, in the year 18-- she was committed to the State Insane Asylum of the State of Montana, where she was temporarily residing, and afterwards was for a short time committed by the authorities of the city of San Francisco to the Home of Inebriates in that city, and afterwards she was committed to the State Insane Asylum at Stockton, where she died; that, while she was in said Home of Inebriates, De Lashmutt, being then her agent and confidential adviser, fraudulently, and with the intent to overreach and defraud her, induced her to make her mark to a deed, conveying to him the south two-thirds of lot 3 in block 22 in the city of Portland, and with like fraudulent intent, procured her acknowledgement and delivery to him of such deed; that during this time she was weak and ill and insane and incapable of doing any business, etc that she was incapable of making or acknowledging or delivering said deed, and that she did so by reason of the influence and persuasion of De Lashmutt and under his direction, without understanding the purport of her said acts or the legal effect of her deed, and without intending to convey the property to De Lashmutt; that at the time of these acts she had great confidence in De Lashmutt on account of their confidential relations, and in the execution and delivery of such deed she yielded to his persuasions and solicitations and directions, by reason of her confidence in him and his influence over her; that De Lashmutt did not pay any money or other consideration for said deed. De Lashmutt's answer denies that Bridget was non compos mentis or insane or of weak mind or incapable of making the deed in question, or that the deed was fraudulently procured or was executed through the influence or persuasion or under the direction of De Lashmutt. The answer then alleges that De Lashmutt does not know and cannot state whether, at the time the deed was executed, Bridget had great or any confidence in him, as alleged in the bill, or as to whether or not, at said time or in so doing, she yielded to the persuasions or solicitations or directions, so fraudulently, as alleged made by said De Lashmutt on account of or by reason of her said alleged confidence in him or his said alleged influence over her. The answer further alleges that Bridget was indebted to the defendant in the sum of $5,800, and that she...