Liebe v. Battmann

• Decision Date: 13 August 1898
• Parties: LIEBE v. BATTMANN et al. [1]
• Court: Oregon Supreme Court

54 P. 179

33 Or. 241

LIEBE v. BATTMANN et al. ^[1]

Supreme Court of Oregon

August 13, 1898

Appeal from circuit court, Sherman county; W.L. Bradshaw, Judge.

Bill by George A. Liebe, executor of the will of R.G. Closter deceased, against Charles W. Battmann and others. There was a decree for defendant Charles A. Schutz, and plaintiff appeals. Reversed.

Condon & Condon, for appellant.

A.S Bennett, for respondents.

WOLVERTON J.

This is a suit to foreclose a mortgage made to secure the payment of a promissory note calling for $1,175, executed and delivered by the defendant Battmann to one R.G. Closter. The plaintiff claims title to the note and mortgage as the executor of the last will and testament of Closter, while the defendant Schutz asserts ownership based upon an alleged gift to him by Closter. This presents the only question in the case, and, if plaintiff is the owner, he is entitled to have the mortgage foreclosed, but, if not, the suit should be dismissed.

The facts upon which it is sought to establish the gift are, in substance, as follows: Closter and Schutz had been intimate friends for many years, and on Friday, August 21, 1896, were living in a house which they had rented together, and where they ate at the same table. There was a large room in the building, opening out of which was a bedroom on the east and another on the south. Closter occupied the east room, and Schutz the one on the south. Schutz, who had been out the night before, came home about 5 o'clock in the morning, and, after a brief but friendly conversation with Closter, retired to his room, and about 6 o'clock heard the report of a pistol shot coming from Closter's room to which he hastened, and found that Closter had shot himself in the left side of the head, near the temple. A physician being called, Closter requested him "to make short work of it, that he wanted to die"; but shortly he passed into a comatose state, from which he never rallied, and died four days thereafter. On a small table at the head of his bed was found a couple of large envelopes, both sealed and addressed, one to Charles A. Schutz, Esq., and the other to Mrs. Bertha Vierea. Schutz handed these envelopes to the plaintiff, who kept them until the death of Closter, when the one addressed to Schutz was opened, and found to contain the said note for $1,175, indorsed "R.G. Closter" in ink, and a note written in pencil upon a piece of another envelope in the following language, viz.: "Charlie, Dear Friend and Brother: Please see to, that Mrs. Bertha Vierea get the letter addressed to her, and advise her how to manage. Yours, R.G. Closter." The envelope addressed to Mrs. Vierea was opened later, and was found to contain a note of Charles Stubling and wife to the deceased. Until the Monday preceding the tragedy, Closter had been living at the home of Mrs. Vierea, but, owing to some misunderstanding, he went to live with Schutz under the arrangement heretofore related. Liebe testified that it was a habit of Closter's to indorse all his notes, but Schutz testified that he saw the note in question about a week prior, and that it was not then indorsed; that some time previous to that Closter was much discouraged touching his ability to collect the note, and said to witness, "I don't think I will get anything out of it," and "I might as well give it to you." Witness also testified that Closter inquired of him whether, if he indorsed a note, he would have to transfer the mortgage also, and he told him that he thought the mortgage followed the note. Witness further stated that the indorsement appeared to have been freshly made. A will of the deceased was found bearing date March 30 1893, by which he disposed of all his property, part to Mrs. Vierea, and other portions of it to three of plaintiff's children, and nominated plaintiff as executor.

Is there in this testimony sufficient to establish a gift of the note and mortgage by Closter to Schutz? The transaction is not supported by any valuable consideration, nor does anybody pretend that it is; so that, if there is no gift Schutz's title must fail. Nor can it make any material difference what may be the quality of the gift, whether inter vivos or causa mortis, as the essential elements which go to establish it in either case are the same, in so far as the pivotal facts give caste to the transaction. There must be an intention in the donor to give, and a delivery, to pass the title. If causa mortis, these things must have been done under the apprehension of death from some present disease or some impending peril, but it is revocable and becomes void by recovery, escape from such peril, or the death of the donee before the donor. Ridden v. Thrall, 125 N.Y. 572, 579, 26 N.E. 627. We need only to consider the intention and the alleged delivery. That there was an intent to give we think is perfectly manifest from the evidence adduced. The inclosing of the indorsed promissory note in a sealed envelope, addressed to Schutz, together with the few lines written him touching the envelope addressed to Mrs. Vierea, indicates so strongly that such was the fact as to become insusceptible of serious...