Haseltine v. Espey

• Decision Date: 31 March 1886
• Citation: 13 Or. 301,10 P. 423
• Parties: HASELTINE and others v. ESPEY and another.
• Court: Oregon Supreme Court

10 P. 423

13 Or. 301

HASELTINE and others v. ESPEY and another.

Supreme Court of Oregon

March 31, 1886

C.P Heald, for appellants.

Ed. Mendenhall and W.H. Adams, for respondents.

THAYER, J.

The appellants, who are copartners in business, obtained a judgment in said court against the respondent Espey, on the twenty-seventh day of June, 1884, for the sum of $710.71 and upon which they caused an execution to be issued. Prior thereto, and on the twelfth day of June, 1884, the said Espey had made an assignment for the benefit of creditors under the insolvent act of the state. Before that time, and on the sixteenth day of October, 1883, said Espey had executed a deed of conveyance to the respondent Thompson to certain real property owned by him, situated in said county. After obtaining the judgment against Espey, and issuance of the execution, the said appellants commenced a suit in the said circuit court against Espey and Thompson, to set aside the said deed from Espey to Thompson, alleging in their complaint in the suit that it was without consideration, and made for the purpose of misleading, deceiving, hindering, and delaying Espey's creditors. The respondents denied the allegations as to the deed being without consideration, and given for the purpose alleged in the complaint; and they averred that it was intended as a mortgage, and was given to secure the sum of $12,575 due from Espey to Thompson for money loaned and liabilities assumed. They also allege the existence of liens upon the land in the form of judgments and mortgages in favor of other parties, and set up the assignment by Espey for the benefit of creditors, and transfer of the equity of redemption to the assignee. The case was referred to a referee to report his finding of facts and law and upon which said referee found that the said deed was a mortgage; that it was made in good faith, for a full consideration, to secure an existing indebtedness from Espey to Thompson; and that the land in question was conveyed by deed of general assignment for the benefit of creditors by Espey to one W.B. McKenzie, as assignee, before the commencement of the suit; and that the said complaint should be dismissed. The circuit court confirmed the referee's report, and thereupon the decree appealed from was entered.

The appellants' counsel contends that the transaction between Espey and Thompson, as shown by the evidence in the case, was suspicious, and that the said deed was not executed in good faith. He also claims that the deed, being in fact a mortgage, but recorded as a deed, was improperly recorded and that the appellants' judgment against Espey has priority over it.

There is nothing in the evidence, as I have been able to discover that is calculated to impeach the bona fides of the transaction. It shows very conclusively that Thompson advanced money to Espey, and indorsed to him for a large amount, which he subsequently paid off; that the amount advanced and paid covered substantially the amount of consideration expressed in the deed. The appellants' counsel insisted that many circumstances surrounding the affair indicated that the advancement of the money, and indorsing Espey's paper by Thompson, might have been for the purpose of enabling the former to cover up his property and defraud and delay his creditors; but he has not been able to point out any badges of fraud that would justify the court in concluding that the transaction was intended for any such purpose, or that it was a sham. A good deal of stress has been laid upon the fact that Thompson, instead of taking a mortgage from Espey in the usual form, took an absolute deed to the land. This is claimed to be a significant circumstance; but it does not appear that Thompson...