Marks v. Crow

• Citation: 13 P. 55,14 Or. 382
• Parties: MARKS and others v. CROW and another.
• Decision Date: 14 January 1887
• Court: Supreme Court of Oregon

13 P. 55

14 Or. 382

MARKS and others v. CROW and another.

Supreme Court of Oregon

January 14, 1887

Appeal from circuit court, Douglas county.

Suit in equity to subject real property to a judgment. Decree for complainants. Defendants appeal.

John Burnett, John Kelsay, and J.J. Walton, for appellants.

Willis & Jones, for respondents.

THAYER J.

The respondents commenced a suit in the court below to subject certain real property, situate in said county, to the payment of a certain judgment, recovered by the respondents in an action at law in said court against the appellant H.G. Crow on the nineteenth day of January, 1884, for the sum of $623.94, and costs of action. The judgment was recovered upon an indebtedness due from said appellant to the respondents alleged to have been contracted between January 1, 1877, and 1881 It appears that during said time the said appellant was the owner of the said real property, and that he continued to own the same until the twenty-sixth day of February, 1883 when he executed a deed to the same to the appellant E.J Crow, who is his brother. The real object of the suit was to declare this deed fraudulent and void as against the respondents' judgment, and the main question in the case is whether the deed was executed in good faith and for a valuable consideration. It appears from the transcript that on the twenty-second day of October, 1879, the said H.G. Crow executed to E.J. Crow a promissory note for $6,500, payable six months after date, with interest at the rate of 1 per cent. per month, and, to secure its payment, executed a mortgage upon the land in suit; that about the twenty-fifth day of October, 1880, the respondents held a note against said H.G. Crow, secured by a mortgage upon real property, upon which there was at that time due the sum of $632.57, and at that date said E.J. Crow called upon respondents and paid it off, and took a transfer of the claim to himself; and that within a day or two from that time said H.G.

Crow confessed judgment upon the note in said circuit court, and at or about the same time also confessed judgment to the said E.J. Crow upon the note and mortgage of October 22, 1879, to the amount of $7,706.80, which two judgments were duly entered in said court. Four thousand dollars of this alleged indebtedness is claimed by the appellants to be the consideration of said deed. The remainder of it is admitted by the appellants to have been liquidated by the said H.G. Crow. The circuit court, after hearing the proofs and evidence, found the following facts: "(1) The promissory note, dated October 22, 1879, for $6,500, described in the complaint, and the mortgage given to secure the same by defendant H.G. Crow to his brother, E.J. Crow, was without consideration, and was made and accepted by said defendants to hinder, delay, and defraud the creditors of said defendant H.G. Crow. (2) That on October 28, 1880, defendant H.G. Crow confessed judgment in favor of E.J. Crow for $7,706.80, upon said note and mortgage; that said judgment was without consideration and false and fraudulent, and made and taken for the purpose of hindering and delaying the creditors of H.G. Crow. (3) It is not true that on or about October 25, 1880, the defendant H.G. Crow, with intent to hinder, delay, or defraud his creditors, furnished the money therefor, or caused the defendant E.J. Crow to purchase from S. Marks & Co., the plaintiffs, the note and mortgage of H.G. Crow to said Marks & Co., of date January 12, 1878, for $421.07, as mentioned in the complaint; but the same was purchased by said E.J. Crow with his own money. (4) It is not true that the judgment confessed by said defendant H.G. Crow in favor of defendant E.J. Crow on the twenty-seventh day of October, 1880, for the sum of $632.57, upon the note and mortgage mentioned in my third finding of facts, was made or taken with the intent to hinder, delay, or defraud the creditors of defendant H.G. Crow. (5) That the deed of conveyance of the real property described in the complaint, executed by H.G. Crow to E.J. Crow on the twenty-sixth day of February, 1883, was executed and received by the parties thereto for the purpose of hindering and delaying the creditors of said H.G. Crow. (6) The said H.G. Crow has remained in the exclusive possession of the real property described in the complaint since the date of the deed of February 26, 1883, from himself to E.J. Crow, and has received the exclusive benefits and proceeds of said land; and there was or is no agreement between himself and said E.J. Crow by which he should account to said E.J. Crow for any parts of the rents and profits of said lands; but he has ever since the date of said deed, and is now, receiving the sole and exclusive benefits of the land and the income therefrom." And thereupon found as conclusions of law that the deed of February, 1883, should be set aside, the land sold, and the proceeds applied (1) to the payment of the judgment in favor of said E.J. Crow against H.G. Crow for $637.57, recovered October 27, 1880; (2) to the payment of the respondents' judgment.

The respondents' counsel contends that the findings of the court are conclusive as to the facts, the same not having been excepted to as provided in the amendment of section 393, Civil Code, adopted at the session of the legislative assembly in 1885. Sess.Laws 1885, p. 69. This amendment was passed after the suit was commenced, and took effect before the hearing was had, and before the testimony was all taken; but the part of the testimony taken after the amendment went into effect related simply to the rebuttal of certain impeaching evidence, and was given orally before the court. Aside from this, all the testimony was taken by deposition in accordance with section 393 of the Civil Code, as amended in 1874. Sess.Laws 1874, pp. 84, 85. The question then arises as to the effect of the amendment of 1885 above referred to. It provides "that all issues of facts in suits in equity may be tried by the court. The evidence shall be presented and the trial conducted in the same manner as actions at law: provided, that the court may, in its discretion, refer the case to a referee, pursuant to the provisions of section 805 of [13 P. 57] this Code. That in all suits the court, in rendering its decisions therein, shall set out in writing its findings of fact upon all the material issues of fact presented by the pleadings, together with its conclusions of law thereon; but such findings of fact and conclusions of law shall be separate from the decree, and shall be filed with the clerk, and shall be incorporated in, and constitute a part of, the judgment roll of said case. And such findings of fact shall have the same force and effect and be equally conclusive as the verdict of a jury in an action at law. Exceptions may be taken during the trial to the ruling of the court, and also to the findings of fact; and a statement of such exceptions prepared and settled as in actions of law; and the same shall be filed with the clerk within ten days from the entering of the decree, or such further time as the court may allow." This amendment was evidently intended to permit the court to proceed and try a suit in equity in the same manner as a case at law is tried where a jury trial is waived. The provision in regard to taking exceptions is not explicit. Exceptions to findings of fact cannot be taken during the trial, as the language of the provision would seem to require. Exceptions of that character cannot, in the nature of things, be taken until after the decision is rendered. The New York Code at one time provided, and probably does yet, that a notice containing the exceptions to the findings should be filed within 10 days after the entry of the decision; but that mode does not seem to be contemplated by this amendment, though I supposed, the first time I inspected it, that it did. The only construction to be given the amendment, as I can see, is to allow the party desiring a review of the decision to prepare a statement of the exceptions taken at the trial, with sufficient evidence to explain them, and, if he wants the facts reviewed, to specify his objections to the findings in the statement, and include in it all the evidence upon which they were found. The amendment also has a broader effect than may generally be supposed. Section 393 of the Code, as amended in 1874, provided that as soon as the pleadings were completed, if the suit be at issue on a question of fact, the parties might proceed and take the depositions of witnesses to be offered on the trial. Said section, as amended in 1885, operates as a repeal of that provision, and also of all matters contained therein authorizing the appointment of a short-hand reporter. This amendment, and the amendment of section 805, leave no provision, as I can see, for taking the deposition of a witness in an equity case, even de bene esse, unless a reference is ordered to find the fact or facts and law. I am not inclined to think, however, that this amendment affected depositions that had been taken prior to its going into effect. I think the rule should be, where the Code is amended pending an action or suit, that the proceedings had in accordance with the provisions thereof in force at the time should be held valid, and that those taken after the amendment goes into effect should be in conformity therewith. If this view is correct, the depositions should be considered in determining whether the findings are supported by the proofs.

The appellant's counsel contend that there is no evidence in the case showing that the deed of February 26, 1883, was executed by the said H.G. Crow to the said E.J. Crow to hinder, delay, or defraud the creditors of the said H.G Crow. This is...