Hope v. Stoner

• Decision Date: 25 September 1923
• Citation: 108 Or. 592,218 P. 555
• Parties: HOPE v. STONER ET AL.
• Court: Oregon Supreme Court

218 P. 555

108 Or. 592

HOPE v. STONER ET AL.

Supreme Court of Oregon

September 25, 1923

In Banc.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by James L. Hope, trustee in bankruptcy, etc. against Angie S. Stoner and others, to set aside a conveyance. From a decree setting aside the conveyance, defendants appeal. Reversed and suit dismissed.

Norblad & Hesse, of Astoria, for appellants.

Edward C. Judd, of Astoria, for respondent.

BURNETT J.

In this suit the plaintiff, as trustee in bankruptcy of the estate of E. B. Stoner, a bankrupt, sues to set aside a conveyance made by Stoner to his wife, the defendant Angie S. Stoner, on December 8, 1920, with intent to defraud the creditors of the bankrupt. The bankruptcy proceedings were commenced July 22 1921, and the adjudication of bankruptcy was rendered September 3, 1921. This suit, therefore, is not one under the federal statutes, declaring void a conveyance made within four months prior to the filing of the petition in bankruptcy. U.S. Comp. St. § 9644, subd. (b). The making and delivery of the conveyance sought to be set aside are admitted. The proceedings in bankruptcy are likewise admitted, but an intent to defraud in making the conveyance is denied. The affirmative defense is to the effect that all the money invested in the land was the separate property of the wife, and she states in her answer in detail the sources from which it accrued, beginning with some real property which she owned in her right in South Dakota, prior to and at the time of her marriage to her husband, the present bankrupt. In her pleadings, she narrates in detail the subsequent transactions by which she invested and reinvested her money until she had enough to purchase the lands in question, the title of which she avers was taken in the name of her husband for convenience. In substance, she further alleges that the conveyance from her husband to herself was made without any intent to hinder delay, or defraud creditors, and for the reason that, having furnished all the purchase price invested in the lands in dispute, she was the equitable owner thereof. The answer is traversed in important particulars, but there is no attempt to plead any estoppel against the defendant wife's assertion of her equitable ownership of the property, nor any other affirmative matter whatever.

At the trial in this state of the pleadings, the plaintiff offered only two witnesses, one the husband and the other his son. All that was undertaken to be proven by the son was that he without the knowledge of his mother, the defendant wife, and against the direction of his father, the bankrupt, had made a property statement to the representative of a commercial agency to the effect that, as partner with himself in an automobile business, his father was the owner of the tract of land here in controversy. As to the bankrupt's testimony the efforts of the plaintiff's counsel seem to have been to prove by him that no money consideration passed from his wife to him at the time of the execution of the deed now sought to be set aside. He admitted what is pleaded, that the original deed to the property named him as grantee. By plaintiff's counsel, he was asked this question:

"Q. You know whether, at that date or previous to it, whether or not the deed or the legal title to any of that property was in your wife or anybody else--the legal title I am talking about now, Mr. Stoner."

He answered:

"A. Yes; she owned the property, really."

Further questions and answers to and by this witness are as follows:

"Q. Between your wife and yourself, there was nothing of value that passed between you--she gave you nothing, no property or money for that deed, did she? A. No; not then. I had--

"Q. No; she didn't give you any property, or anything of value, for that deed at that time? A. Why should she?

"Q. Well, Mr. Stoner, I don't know why she should, but I am asking. A. She owned the property.

"Q. She didn't-- A. She did own the property.

"Q. I didn't-- A. She owned the property. Why should she give me anything?

"Q. You say she owned the property; so that there was nothing that passed between you at that time, was there? A. No." On cross-examination, after repeating the statement thus:

"A. It belonged to Angie S. Stoner, my wife."

--he was asked this question:

"Q. Well, now, who paid for that property?"

Without objection being made he answered:

"A. She paid for it with money that she had before we were married, that started from that."

He further testified on cross-examination as follows:

"Q. Who paid the purchase price for the various pieces of property that were included in that deed? A. She did.

"Q. With whose money, whose funds, or with-- A. She furnished--

"Q. Who furnished the consideration? A. She furnished the money. * * *

"Q. I say, who furnished the money, or any other consideration, for the various pieces of property described in that deed? A. Well, she did really; my wife furnished the money. She was-- I was broke when I came to Astoria.

"Q. Well, did you ever put a dollar of your own individual money for the purchase of any of that property, or did you furnish any other consideration of any kind or description whatsoever that went into the purchase of that

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