Philbrick v. O'Connor

• Decision Date: 29 March 1887
• Citation: 15 Or. 15,13 P. 612
• Parties: PHILBRICK v. O'CONNOR, impleaded, etc.
• Court: Oregon Supreme Court

13 P. 612

15 Or. 15

PHILBRICK v. O'CONNOR, impleaded, etc.

Supreme Court of Oregon

March 29, 1887

Appeal from Multnomah county.

Chas H. Carey and Joseph Gaston, for appellant.

Richard Williams, for respondent.

STRAHAN, J.

The plaintiff recovered a judgment in the circuit court of Multnomah county, against the defendant P.C. Smith, for $5,000, for the willful and malicious shooting and wounding of the plaintiff by said Smith. At the time of the commencement of said action, Smith was the owner and in the possession of the property in controversy; but before judgment he conveyed the same to the appellant. The plaintiff sued out execution on his judgment, which being returned nulla bona, he brings this suit to set aside the deed made by Smith to O'Connor pending the original action, on the ground that the same was fraudulent. O'Connor filed an answer in the court below denying the material allegations of the complaint; but upon the trial the court found against him on the question of fraud, but, under the peculiar and particular facts of the case, allowed the $1,800 which he had given to Smith at the time the deed was made to be returned to him out of the first proceeds of the sale of the property, and decreed that the plaintiff be next paid the amount of his judgment from the proceeds of such sale; from which decree the defendant O'Connor has appealed to this court.

The plaintiff claims that the deed in question is void under section 51, p. 523, Gen.Laws Or., which provides: "Every conveyance or assignment in writing or otherwise of any estate or interest in lands or in goods, or things in action or of any rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents or profits thereof, made with the intent to hinder delay, or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts, and demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent as against the persons so hindered, delayed, or defrauded, shall be void." And sections 54 and 55, on the same page, are as follows:

"Sec 54. The question of fraudulent intent in all cases arising under the provisions of title 2, 3, or 4 of this chapter, shall be deemed questions of fact, and not of law.

"Sec. 55. The provisions of titles 2, 3, and 4 of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor."

The existence of an actual fraudulent intent on the part of Smith at the time the deed in question was made, and that it was made with the intent to hinder, delay, and defraud the plaintiff, stands admitted on this record by the defendant Smith. Though personally served with the summons and complaint, he failed to file an answer, and was defaulted. This default, for the purposes of this suit admits the truth of every material allegation contained in the complaint as to the defendant Smith. The...