Holladay v. Holladay

• Citation: 13 Or. 523,11 P. 260
• Parties: HOLLADAY v. HOLLADAY.
• Decision Date: 17 June 1886
• Court: Supreme Court of Oregon

11 P. 260

13 Or. 523

HOLLADAY v. HOLLADAY.

Supreme Court of Oregon

June 17, 1886

Appeal from Multnomah county.

T.N Strong and R. Williams, for appellant, Joseph Holladay.

C.B Bellinger and H.Y. Thompson, for respondent, Ben Holladay.

J.M. Gearin and Geo. H. Williams, claiming a forfeiture for usury.

THAYER J.

The respondent commenced a suit in the lower court against the appellant, to have certain conveyances and assignments of real and personal property, theretofore made to the latter declared to be mortgages as against the former, and to compel an accounting for the rents and profits thereof. The property conveyed is situated in different counties in the state though mostly in the county of Multnomah. It consists of houses, lands, stock in various corporations, household furniture, choses in action, and a quantity of wines and liquors. It appears that the parties to the suit are brothers, each far advanced in life, and it would seem that, until a short time before the suit was commenced, a strong fraternal feeling and affection existed between them, and that each reposed in the other unlimited confidence. The respondent has raised a family; has, during a great portion of his life, been actively engaged in financial enterprises of great magnitude; has acquired and lost large property interests; and been accustomed to luxurious habits of living. His gains and profits have been immense, and his generosity and liberality bordered upon profligacy and recklessness. The appellant is a bachelor. He has confined his financial operations to a limited business, and pursued a cautious and frugal course; and while his brother has been endeavoring, by shifts, devices, and speculations, to make a great fortune, he has, by prudence and economy, succeeded in saving a very good competency. The career of the one has alternated between munificence and distress, and that of the other been attended by gradual and constant thrift. The respondent, for a great number of years, has been accustomed to borrow from the appellant, from time to time, sums of money, and to call upon him to pay money for his use and benefit. During the said times the appellant was residing in San Francisco; that some time prior to the first day of November, 1876, the respondent came to Oregon, and commenced financial operations in this state, and acquired the interests in the properties so conveyed to the appellant; that on said first day of November, 1876, the appellant held two promissory notes against the respondent,--one of them was for $100,000, and interest,--and the other was for $4,500, and interest. The $100,000 note bore date January 1, 1873, and the $4,500 note bore date August 21, 1875. The rate of interest in each was 1 per cent. per month; that said appellant was at Portland, Oregon, on said first day of November, 1876, but I should judge from the evidence that he was there only temporarily,--probably on business; that he then proposed that the respondent make him a new note, which was readily assented to by the latter, who thereupon executed to the appellant a promissory note for $163,345, at the same rate of interest, which, ostensibly, was given to cover the other two notes, and interest accrued thereon. Long prior to the execution of this last note the respondent had signed a deed by the terms of which he conveyed the part of the property in question known as the "residence property" to the appellant, but it was not delivered until May, 1876. Nothing seems to have been said about the matter, nor was the object or purpose indicated. The property was valuable, and seems to have been held ever since by the respondent, and to have been regarded by him as his Oregon residence. In 1875 the respondent conveyed, and caused to be conveyed, to the appellant the property known as the "Sea-side Residence," situated in Clatsop county. The appellant was residing at San Francisco at the time, and was not informed until afterwards that these conveyances had been made to him. The property last referred to consists of a hotel and grounds, constituting a fashionable summer resort. The other property in controversy was conveyed subsequent to the giving the note last referred to.

It appears that some time about the first of November, 1877, there was something said between the parties about the property. The respondent at that time was about to leave the state, to be gone an indefinite time, and that the appellant had become anxious about his debt. He says he went to the respondent about the property, and told him that he wanted his money; that the respondent did not have it, but that he told him (appellant) the property was his; "that no power on earth could take it from me; that it is my property." This testimony does not seem to have been controverted, and I have no doubt but that it is true. The respondent left the state at that time, and did not return until a short time before the suit was commenced, which was in the latter part of 1883.

It appears, further, that the appellant, at the time of the execution of the last note, was contemplating going back to San Francisco, and was urged by the respondent to remain, and that he did so, and has managed the property, and all the various complications connected with it, prudently and skillfully; that he perfected titles to parts of it, conducted the business to which other portions of it were devoted successfully, and has preserved it almost in its entirety. He has, besides, paid, from the proceeds of the businesses, a large sum of general indebtedness against the respondent, a large sum charged upon the property, and furnished to the respondent, for his own private use, about $120,000. The evidence shows that no estate in the hands of a bailiff was ever better managed or preserved. Even the wines and liquors left at the residence were almost untouched. Out of a $6,000 stock of those articles of beverage, it was conceded upon the argument that the appellant had used only a hundred dollars' worth, during the six years they were in his custody. The amount of cash drawn for his private use during all that time was $6,720.

There are many other incidental facts in the case that have been litigated earnestly, but it will not be necessary to make a detailed statement of them, or express any particular view as to their effect.

The appellant filed an answer to the complaint. After it had been amended some five times, and upon the issues so raised, a large amount of testimony was taken. A hearing of the case was had before said circuit court, and the decree from which the appeal is brought was given thereon. No one can take a retrospective view of this affair without concluding that a great deal of useless controversy has been had and bitterness indulged in. The relationship of the parties seems to have been overlooked. The fact that the same blood courses through the veins of each, and that they were both nursed at the same breast, seems not to have been considered with that reverence which ties so sacred should inspire. Besides, for years and years, they had been upon the most intimate and friendly terms, manifesting an intensity of feeling for each other that no relationship between man and man, save that of consanguinity, will incite. On the twentieth and twenty-eighth of September, 1883, the respondent telegraphed the appellant of his intended departure for Oregon, and directed him to get the house ready to receive him and his family. The latter promptly responded to the demand, and the former duly arrived, and was cordially received; but for some cause or other they failed to adjust their affairs, and the suit was begun. They engaged in a limited correspondence by letter prior to the commencement of the suit, although they were both living under the same roof, and this terminated by a written offer upon the part of the respondent to pay the appellant $275,200, principal and interest, upon the said promissory note for $163,345, designated in the offer as $160,000, and as bearing date about from the first to the fourteenth of November, 1877; and a demand for a redelivery to the respondent of the stocks, choses in action, and other personal property transferred; and of a reconveyance of the real property conveyed; and for an accounting of the rents, issues, and profits of the property; and of all the property disposed of by the appellant. The offer was refused, and a resort had to the courts for a settlement.

There would have been less objection to such a course if the issues had been confined to the real matters in difference; but the appellant, instead of exhibiting an account, and having a speedy and final settlement of the affair, interposed several defenses that have consumed a large portion of time and amount of expense to dispose of. The defense that the property was conveyed absolutely to the appellant has not been sustained, and was virtually abandoned upon the argument. It does not appear, it is true, that there was any understanding between the parties at the time of the conveyances that they were made for the purpose of securing the indebtedness; but the whole transaction clearly indicated it, and the respondent evidently expected that the appellant would take charge and manage the property, and the business connected therewith. The other attempted defense, that the transfer was made with intent to hinder, delay, or defraud creditors, also entirely failed of proof. There is nothing shown that it tended to have that effect. A vague suspicion might arise that the respondent was apprehensive that an attempt would be made by his creditors to lay hold of this property, but there is no proof that such was the fact. His indebtedness to the appellant was a sufficient justification for the conveyances;...