Matlock v. Alm

• Decision Date: 01 April 1919
• Citation: 91 Or. 709,179 P. 570
• Parties: MATLOCK v. ALM ET AL.
• Court: Oregon Supreme Court

179 P. 570

91 Or. 709

MATLOCK v. ALM ET AL.

Supreme Court of Oregon

April 1, 1919

Department No. 2.

Appeal from Circuit Court, Marion County; Geo. G. Bingham, Judge.

Suit by C. N. Matlock, as administrator of the estate of Cora B Matlock, deceased, against Julius Alm and Christian Alm. From a decree for plaintiff, defendants appeal. Modified and affirmed.

This is a suit in equity to set aside an alleged fraudulent conveyance, and subject the property in question to execution under plaintiff's judgment. The defendant Julius Alm is the father of the defendant Christian Alm.

Plaintiff's judgment, which he is seeking to fasten as a lien upon the land in question, grew out of an automobile accident, in which a collision occurred between an automobile driven by the defendant Christian Alm, and one in which plaintiff's intestate was riding. The machine in question belonged to the defendant, Julius Alm, but appears to have been borrowed by his son Christian, and was being used, at the time of the accident, solely for his son's pleasure and advantage.

Cora B Matlock, the plaintiff's intestate, was killed in the accident and several other parties were injured. An action was brought by her administrator, plaintiff herein, against both of these defendants, to recover damages for her death which resulted in a judgment in favor of plaintiff, against the defendant Christian Alm, for $1,000. The defendant Julius Alm was exonerated from liability by the verdict in that case.

After the accident, and while the defendants were being threatened with numerous actions growing therefrom, the defendants seem to have agreed among themselves, that the property in question here, which was a lot and dwelling house in the town of Silverton belonging to Christian Alm, should be conveyed by him to the defendant Julius Alm, for the purpose of reimbursing Julius Alm for the injuries to and expense in repairing his automobile caused by the collision, and also to provide for the expense of employing attorneys and defending the cases which were about to be brought, and which the defendant Julius Alm assumed and agreed to pay. The deed to the property from the son to the father was not executed until after an action of damages had actually been brought by the plaintiff, against the defendants jointly, and about the time the trial of that action was pending.

In this suit the defendants offered evidence tending to show that the cost of repairing the automobile amounted to $560, and that the automobile was further depreciated in the value of $500. The undisputed testimony showed that the defendant Julius Alm had expended in the two actions at law, brought against him and his son jointly, the amount of $751.30, for attorney's fees and other expenses of the suit.

The court below found that the deed was not executed for the purpose of defrauding, but as security for the father's claim for damages, and decreed that the property be sold and the proceeds applied, first, to the satisfaction of the $460 for repairs; second, the sum of $100, which the court found to be the depreciation of the automobile, making $560 in all with interest at 6 per cent. from January 20, 1917, and that the remainder of the sum received from the sale of the property, should be applied upon the payment of the costs and disbursements of this suit, and the judgment of the plaintiff herein, in the actions at law. The lower court did not allow the defendant Alm anything on his claim for attorney's fees and expenses in the law action.

John H McNary, of Salem, and Custer E. Ross, of Silverton (McNary & McNary and E. M. Page, all of Salem, on the briefs), for appellants.

John Carson and Thomas Brown, both of Salem, for respondent.

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

We are satisfied with the findings of the court below as to the character of the conveyance in question. It seems to be the established practice in this state, where the transaction is bona fide, but the consideration inadequate, to treat the conveyance as a mortgage, and permit the property to be sold, and the proceeds applied, first, upon the amount actually due from the grantor to the grantee; second, upon the claim of the judgment creditor. Morrell v. Miller, 28 Or. 354, 43 P. 490, 45 P. 246; Hazeltine v. Epsiey, 13 Or. 301, 10 P. 423. Neither shall we disturb the findings of the court below as to the amount expended for repairs of the automobile, or as to the depreciation thereof.

We think, however, the court should have allowed the defendant Julius Alm the amount expended on behalf of his son for attorney's fees, etc., in defending the actions at law. The respondent cites...