Hamilton v. Holmes

• Decision Date: 30 October 1906
• Parties: HAMILTON v. HOLMES et al. [*]
• Court: Oregon Supreme Court

87 P. 154

48 Or. 453

HAMILTON v. HOLMES et al. ^[*]

Supreme Court of Oregon

October 30, 1906

Appeal from Circuit Court, Benton County; J.W. Hamilton, Judge.

Action by James E. Hamilton against Webster Holmes and another. From a decree in favor of plaintiff, defendants appeal. Reversed and dismissed.

This is a suit by James E. Hamilton, as sole heir of his mother, Anna Hamilton, deceased, against Webster Holmes and W.H. Holmes to have an absolute deed executed by her to Webster Holmes declared to be a mortgage and for an accounting. The facts are that the defendants, who are attorneys, were employed by Mrs. Hamilton to institute a suit for her against her husband, John Hamilton, for a dissolution of the marriage contract and for a settlement of property rights; and, as she had no money to pay therefor, she agreed to give them, as compensation for the service to be performed, an undivided one-half of all that part of a donation land claim in Benton county which they should secure from her husband. The defendants, negotiating with Hamilton, obtained by his direction from one Frank Wilkinson, who held the legal title conveyances to Mrs. Hamilton of an undivided one-half of the north half of such land claim, all interest in the south half thereof, and two lots in Junction City, which deeds were placed in escrow, to be delivered when the divorce was granted. The property rights having been thus amicably adjusted, Mrs. Hamilton, on December 24, 1900, entered into a written contract with the defendants, in which it was stipulated that she would convey to Webster Holmes all her interest in the donation land claim, which he was to sell as soon as practicable and to the best advantage possible, and pay her in cash one-half the proceeds of such sale, retaining the remainder for himself and his codefendant as their compensation. The suit for divorce on the ground of desertion, in which the defendant made no appearance, was tried, and Mrs. Hamilton secured the decree January 29, 1901 on which day, for the expressed consideration of $500, she executed a deed to "Webster Holmes as trustee," as agreed upon, which deed was duly recorded. Mrs. Hamilton soon thereafter went to Denver, Colo., where she died March 3 1901, leaving the plaintiff herein her sole heir. The defendant Webster Holmes on August 29, 1901, borrowed from one M.D. Allen the sum of $700, and to secure the payment thereof gave him a mortgage of all the interest in the donation land claim that had been so conveyed to him. The plaintiff attained his majority June 20, 1903, and thereafter instituted this suit, alleging that the land conveyed by his mother to Webster Holmes was of the value of $2,000; that she agreed with the defendants to pay them a reasonable sum for their services, to secure the payment of which she executed such deed, and at the time it was made she was inexperienced in the transaction of business, easily influenced by others ignorant of the value of such land, and, acting solely on the solicitation of the defendants, and without independent advice, she executed the deed, which was intended as a mortgage to secure the payment of a reasonable sum as attorneys' fees, which is $250; that the plaintiff requested Webster Holmes to state what sum, if any, was due the defendants as their compensation, and demanded of him the execution of a deed to the premises to himself as the sole heir of his mother, but he refused to comply therewith; and that the plaintiff was willing that the defendants should be paid a reasonable attorney's fee, and offered to pay the same upon the execution of a conveyance to him of such premises free of all incumbrances placed thereon by Webster Holmes. The prayer of the bill is that the defendants be directed to account for the sum of $700 and interest thereon, as evidenced by the mortgage, less a reasonable compensation as attorneys' fees, and that Webster Holmes be required to convey the premises by good and sufficient deed, clear of all incumbrances, to the plaintiff, and for general relief. The answer denied the material allegations of the complaint, averred the facts, in substance, as hereinbefore stated, and that the defendants agreed with Mrs. Hamilton that Webster Holmes should take and hold the title to such lands in his own name for himself and as trustee for his codefendant, and for no other person, to sell the premises according to the terms of their contract, and that she intended to and did convey all her right, title, and interest in the premises, without any reservation to herself therein, and that Webster Holmes never at any time held any part of the land in trust for Mrs. Hamilton or for her son, the plaintiff herein. The reply having put in issue the allegations of new matter in the answer, the cause was tried, resulting in a decree as prayed for in the complaint, and the defendants appeal.

H.J. Bigger and Frank Holmes, for appellants.

John Bayne, for respondent.

MOORE J. (after stating the facts).

The defendants, as witnesses in their own behalf, testified that when retained by Mrs. Hamilton she represented to them that her father had been the owner of the north half of a donation land claim in Benton county, containing in all 319.85 acres and that she had been the owner of an undivided one-third of the south half thereof, the other interests therein being owned by two sisters; that her father moved to California, where he became ill, and she with her family went to that state to care for him, and while there her husband, without any consideration therefor, induced her father to execute to him a deed of his part of such claim, and also two lots in Junction City, which he also owned; that her husband persuaded her to join in executing to one Frank Wilkinson a deed of such real property, including her interest in the south half of such claim, but that the conveyance was made to defraud her out of her property rights, and after her father's death her husband deserted her; that she was compelled to return to Oregon, making the journey with a team, and on the way her three daughters contracted colds from exposure incident to the trip, and died of consumption; that, coming to Salem, Mrs. Hamilton secured employment, whereby she was enabled to support herself and her remaining child, the plaintiff herein, but she felt indignant at the treatment she had received from her husband, and blamed him for the loss of their children, whose death caused her much grief; that the plaintiff's mother did not regard the donation land claim as being worth much, because the buildings thereon were dilapidated and the fences decayed and fallen, so that no profit was derived from the premises, but she considered the lots in Junction City valuable, inasmuch as they had houses thereon that could be rented from which a revenue was derived; that not knowing the value of the real property in Benton county, except in a general way, they made the agreement with Mrs. Hamilton, as hereinbefore stated, and performed the service specified, receiving as their compensation her deed in full settlement thereof, they stipulating to sell the real property so conveyed, and to pay her one-half the sum realized therefrom, but that they had been unable to secure a purchaser therefor; that their attorney's fee for securing the divorce and for adjusting the property rights was fully paid and discharged by the execution of the deed, which was never intended as a mortgage, but was designed as an absolute conveyance of the premises, to be held in trust by Webster Holmes for his codefendant, and for no other person; that at the time Mrs. Hamilton employed them and also when she executed such deed she was competent and qualified to make a valid contract, and, though she mourned the loss of her daughters, her grief was no more than that of other mothers under like affliction; and that they were negotiating with plaintiff's father about two months before they secured a settlement of the property rights of the parties to the divorce proceedings. Mrs. Pugh, a sister of the plaintiff's father, testified...