Lipman Oil Co. v. Schwind

• Decision Date: 18 March 1930
• Parties: LIPMAN OIL CO. v. SCHWIND ET AL.
• Court: Oregon Supreme Court

285 P. 1025

132 Or. 381

LIPMAN OIL CO. v. SCHWIND ET AL.

Supreme Court of Oregon

March 18, 1930

Department 1.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Suit of interpleader by the Lipman Oil Company against Helen Schwind and another. From an adverse decree, defendant named appeals.

Affirmed.

This is a suit in interpleader, instituted by the Lipman Oil Company a corporation, for the purpose of obtaining a determination of the rival claims of Helen Schwind and the Security Savings & Trust Company to forty shares of its capital stock. The registered owner of this stock, at the time when this suit was instituted, was Jacob Schwind. He makes no claim to it now, but, together with his wife, insists that she is his transferee, and therefore its owner. The Security Savings &amp Trust Company disputes that claim, and asserts ownership of the stock by virtue of having had a writ of attachment served upon the secretary of the oil company in an action subsequently determined in its favor, wherein the bank was the plaintiff and Jacob Schwind was the defendant; the subject-matter of that action was a promissory note signed by Schwind and payable to the bank. The latter had no notice of Mrs. Schwind's claim when the writ was served. Since the oil company asserts no claim to the stock, the controversy is between the bank and Mrs. Schwind. The decree of the circuit court was in favor of the bank.

Lamar Tooze, of Portland (J. G. Arnold and Jaureguy & Tooze, all of Portland, on the brief), for appellant.

V. V Pendergrass, of Portland, for respondent.

ROSSMAN, J. (after stating the facts as above).

Jacob Schwind purchased these forty shares of corporate stock in 1925, and remained owner of them until adversity overtook him. At that time he transferred them to his wife, and at approximately the same time the bank sued him upon his promissory note. Mrs. Schwind claims that the transfer to her was bona fide and supported by the consideration of an antecedent debt. The bank contends that the assignment to the wife was made for the purpose of defrauding Schwind's creditors. Apart from the testimony of Mr. Jubitz, one of the officials of the bank, who did no more than produce the note, the only other witnesses in this suit were Mr. and Mrs. Schwind. The latter, to whom we may refer as the claimant, insists that this testimony substantiates her claim; the bank asserts that this testimony does not possess enough cogency to defeat its rights as an attaching creditor. It argues (1) that the transfer to Mrs. Schwind is not supported by any consideration; (2) that, if the evidence discloses any consideration, it is an antecedent debt, which, it contends, cannot support a transfer of this character; (3) that, since the transfer to Mrs. Schwind was never registered upon the stock records of the oil company, it is void as to the bank. We shall express our opinion in regard to the first and second contentions only.

In 1893 Jacob Schwind and the claimant became husband and wife; the latter apparently was possessed of no estate, while the former, according to the claimant, "had a little money--I don't know exactly how much, but he had a few thousand dollars." In addition he was the owner of a shoe repair establishment. Mrs. Schwind at once took up her household duties, and there is no evidence that she ever engaged in any occupation, or had any source of income, except that derived from her husband. She testified, it is true, that at times she rented rooms in the family home, but, since the latter was modest in size and since she did not mention the amount thus earned, we assume that it was inconsequential. Through close attention to the business and economy at home, a small competence was created as time passed on. In the latter part of 1918, Mr. Schwind began to invest the savings in the preferred stocks of various corporations. Mrs. Schwind testified that these securities were paid for with "the money which Mr. Schwind had accumulated and saved during the time we were married." It is agreed that Schwind was the owner of the shoe repair shop; it was the profits of this business which produced the savings above mentioned. By 1920, $10,000 of such stock had been purchased. Each purchase was made by Mr. Schwind, and the money that paid for it came out of bank accounts carried in the names of both. Apparently the claimant was not consulted before these purchases were made and never possessed any of the securities. Mr. Schwind had the certificates for $8,000 of this stock written in the joint names of his wife and himself. A certificate for $1,000 of stock in the Quaker Oats Company showed that Schwind was its owner, and another certificate, also for $1,000 in the same company, carried the name of Mrs. Schwind as owner. Both Mr. and Mrs. Schwind testified that each of them owned in equal shares this stock and the bank balances. The title to a piece of property, which had been the family home for many years, was vested in the name of the husband. This city lot was improved with three houses and was valued at $15,000 by Mr. Schwind in 1927. The above-described real property, the shares of corporate stocks, the two bank accounts, and the shoe repair establishment, comprised all of the assets of the two in 1920.

In the fall of 1921 Mr. Schwind retired from his business and in the year 1925 began to speculate in the stock market. His activities between the two years just mentioned are not disclosed by the testimony. He testified, however, that in that period of time he occasionally disposed of some securities and purchased others with the proceeds. At those times he did not consult with his wife, and frequently took the certificates in his individual name. Mrs. Schwind willingly signed the necessary instruments to enable him to handle these transactions. As above stated Schwind began to speculate in stocks in 1925. His wife testified that she was not aware of this fact at that time, and her husband gave like testimony. However, we notice that, when he began to narrate, as a witness, his operations as a speculator, he testified that he told her "I was buying different stocks to keep myself busy, doing something else." Apparently by the latter part of 1927 Mr. Schwind had suffered severe losses. In November of that year he resorted to loans upon policies of life insurance in an effort to save himself from further losses. Upon one policy $1,075 was obtained, and upon another $1,100. In the one his wife was named beneficiary, and his life was the subject-matter of the policy; in the other, the reverse of this situation was the fact. Prior to that time Schwind had pledged with his broker as security for his marginal account much of the corporate stock which he had purchased prior to his speculative ventures. December 2, 1927, he applied to the Security Savings & Trust Company for a loan. Upon that day he obtained $500 from the bank upon his unsecured note; December 5, 1927, he obtained $1,500 more in a like manner. April 25, 1928, when he was unable to pay these two notes, he executed a renewal note for $2,000. This is the note which became the subject-matter of the action previously mentioned.

In January of 1928 the brokerage firm failed; this incident brought him further loss and also brought to a close his speculative operations. At the time of its failure, this firm held as security for his marginal account the only stock which he still owned as a part of the purchases which he had made prior to 1925. When he was unable to pay the firm's demands, this stock was sold, and there remained available for him only $400, which his wife collected. In the meantime, the two bank accounts had been exhausted, and apparently all of the stock above mentioned was dissipated except the forty shares of oil stock. The real property remained unincumbered.

October 30, 1928, the bank sued Schwind upon his $2,000 note and served a writ of attachment upon the secretary of the Lipman Oil Company, whose books at that time, as proviously indicated, showed that Schwind was the owner of forty shares of its capital stock. After the oil company had made a return to that effect, Mrs. Schwind made a demand upon it for this stock. As the result of that demand, this suit was instituted by the oil company.

Mrs. Schwind supports her claim to the ownership of this stock with the testimony previously reviewed to the effect that she was a half owner of the $10,000 of securities purchased prior to 1925 and a half owner of the two bank accounts; that she was unaware of her husband's stock market operations and had not authorized him to dispose of her stock for his account; that, as the result of his alleged wrongful appropriation of her property, he became indebted to her for its value; that when she discovered the loss of her property, she insisted that he make restitution; that Mr. Schwind acknowledged he was indebted to her, and, in an endeavor to secure its payment, assigned to her twenty shares of this oil stock July 15, 1927; that on June 2, 1928, he assigned to her the remaining twenty shares; that, when the latter assignment was made, it was agreed that these shares, together with the first group of twenty shares, should constitute part payment of her claim; that at the same time he gave her a deed for the real property as further part payment of her claim; and finally she insists that she also has a claim for repayment to her of half of the amount borrowed upon the policies of life insurance.

Schwind's testimony was intended to corroborate that of his wife in support of her claim. He testified that, after he had disposed of the stock in which she was entitled to a half interest, "the understanding was that she was to get the stocks back or the equivalent." He...