Pierson v. Fisher

Citation85 P. 621,48 Or. 223
PartiesPIERSON et al. v. FISHER et al.
Decision Date12 June 1906
CourtSupreme Court of Oregon

Appeal from Circuit Court, Yamhill County; William Galloway, Judge.

Action by Clark M. Pierson, as executor of the last will of Mary E Burbank, deceased, and others, against Charles F. Fisher and Roswell L. Conner. From a judgment for plaintiffs, defendant Fisher appeals. Affirmed.

This suit was instituted January 12, 1905, by Mary E. Burbank against Charles F. Fisher, to remove a cloud from the title to real property. The complaint alleges in effect that plaintiff's mental faculties, by reason of advanced age were impaired: that the defendant having knowledge thereof and with intent to defraud her, falsely represented that the stock of the American Alarm Company, a corporation, was of the par value of $50 a share; that he had found a person who would purchase her farm in Yamhill county and pay therefor the sum of $8,850, if she would accept $4,000 in cash and stock of that corporation of the face value of $4,850; that such representations were false, and so known to be by the defendant and such stock was worthless; that plaintiff having no knowledge of the value thereof, or of the falsity of such statements but firmly believing them, verbally agreed that in consideration of the payment of that sum and of the delivery of such stock she would convey her farm to such person as the defendant might designate; that pursuant to the terms of such agreement, she signed, sealed, caused to be witnessed, and acknowledged a deed, purporting to convey to the defendant the legal title to the farm, but she did not deliver the instrument, leaving it on a table intending to retain possession of it until the consideration specified had been paid and delivered to her; that without her knowledge or consent, the defendant took such instrument and carried it away and unless restrained, will cause it to be recorded thereby further clouding the title to the premises, to prevent which she has no plain, speedy, or adequate remedy at law. The prayer for relief is for an injunction to prevent the deed from being recorded, for the removal of such cloud and to require the defendant to surrender the deed that it may be destroyed. The answer denied the material allegations of the complaint and averred that January 2, 1905, the defendant entered into a contract with the plaintiff by the terms of which it was stipulated that in consideration of the delivery to her of the stock of such corporation, of the par value of $7,500 and $1,000 in cash, she would convey her farm to him or to such purchaser thereof as he might secure; that five days thereafter this contract was modified so that she accepted the defendant's promissory note for $1,000 payable in one year with 8 per cent. interest, in lieu of that sum in cash, and executed and delivered to him her deed of the premises, receiving such stock and note, except that by agreement he retained the sum of $50 for procuring an abstract of the title to the land; that at the time the deed was executed the stock referred to was of the reasonable value of $50 a share, which fact plaintiff then well knew; that at such time the defendant was and now is solvent and is ready, able, and willing to pay the sum so expressed and interest, and tenders the amount thereof to her; that the note and stock were delivered to plaintiff January 7, 1905, the control of which she now has and defendant holds possession of the deed and is the owner of the land. The reply put in issue the allegations of new matters in the answer and the cause having been tried, it was decreed that the defendant had no interest in the land or any part thereof, and the temporary injunction which had been issued was made perpetual, whereby he was restrained from recording the deed and from incumbering or conveying any part of the premises, and he appeals. After the appeal was perfected the plaintiff died testate, whereupon Clark M. Pierson, the executor of her last will and testament, and her devisee, the state of Oregon as trustee, were substituted as respondents.

Thomas O'Day, for appellant.

James McCain, for respondents.

MOORE J. (after stating the facts).

The evidence shows that a patent was issued February 3, 1903, to Ira S. Bunkard for a fire and burglar alarm. This devise, as appears from blue prints offered in evidence, consists of clock machinery which is set in motion by the severing of a cord by fire or by the raising of a window or the opening of a door, causing a bell to ring and disclosing on an indicator the location of the disturbance and the probable cause of the alarm. The American Alarm Company was incorporated under the laws of this state, with a capital of $50,000, divided into 1,000 shares of $50 each. Bunkard, in consideration of $600, assigned all his interest in this patent to the incorporators of that company who transferred such right to the corporation for its entire capital stock, on the assumption that it had been fully paid up. The company delivered to the incorporators, who paid for an assignment of the patent, $30,000 of its stock, and the remainder of the issue, which is designated as "treasury stock," was held in trust for the corporation, to enable it by the sale thereof to secure money to be used in perfecting the invention and in manufacturing and selling the apparatus. About one-half of the treasury stock has been disposed of, a small part of which was given to persons whose influence was considered advantageous to the company, and the remainder sold at par. The corporation, January 7, 1905, possessed in cash about $325; manufactured alarms costing about $1,800; patterns of the value of $1,800; and office furniture worth about $75, making the value of its tangible property about $4,000. The company in a year and a half prior thereto, or during the period of its existence, had disposed of the right to manufacture and sell its alarms in one county only and had sold only six fire and burglar alarms to persons who were not the owners of its capital stock. These meager sales were accounted for by the delay necessitated in developing the machinery and in perfecting its operation, and also by difficulty experienced by the agents of the company in finding a factory where the alarms could be manufactured at reasonable prices, which obstacles, so it is claimed by defendant's witnesses, had been overcome only a few days prior to January 7, 1905. The company issued circulars which, for a prelude, contained the following couplet:

"Dollars and dimes, dollars and dimes, An empty pocket is the worst of crimes."

The prospectus showed how much money had been made by investing a single dollar in various enterprises and what sales of alarms could be expected, asserting that from the purchase of one share of alarm stock at $50, the sum of $1,500 might be realized. The plaintiff, Mrs. Burbank, became acquainted with the defendant soon after the corporation was organized, when he called upon her with a view of selling its capital stock and at that time she received one of these circulars. In May 1904, he visited her again and gave her one share of such stock, whereupon she purchased of him five more shares of the stock for which she paid $250. At that time Mrs. Burbank was 77 years old, and until the death of her husband, which occurred about four years prior thereto, she had never transacted any business of importance, though possessed of considerable property. The defendant, having only thrice met the plaintiff, wrote her as follows: "American Alarm Company, Portland, Ore., Nov. 14th, 1904. Mrs. Mary E. Burbank, Lafayette, Oregon--Dear Mrs. Burbank: I have recently bought a home here in Portland and am happily located, and Mrs. Fisher and myself wish to extend to you a special invitation to come and spend Thanksgiving week with us. We have both lost our parents, and we dearly love elderly people, and feel we would be glad to do all in our power to make you happy and enjoy your visit with us. You have not as yet met my wife, but I have so often spoken of you that she already feels she is acquainted with you. Hoping that you are well and that you will be able to come, I am, respectfully, C.E. Fisher, 670 Tillamook St."Mrs. Burbank, as a witness in her own behalf, testified that the defendant visited her in January, 1905, telling her he had found a purchaser from California who would take her land and make a nut farm of it; that she told him the premises contained 190 acres which she would sell for $45 an acre and take $4,000 in cash and a mortgage on the land to secure the remainder of the purchase price; that after discussing the proposed sale a short time, he suggested the acceptance of Alarm stock instead of cash, to which proposition she did not accede, telling him she wanted it distinctly understood that she must have cash when she sold her farm; that he thereafter returned with a deed which had been prepared and asked how much money was required to be paid down and she informed him that she must have $4,000; that after doing some writing, he said: "Here, Mrs. Burbank, is where you sign your name to the deed," and she subscribed her name to the instrument, which was witnessed and acknowledged and left on a table; that going into another room and...

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6 cases
  • Archambeau v. Edmunson
    • United States
    • Oregon Supreme Court
    • February 26, 1918
    ... ... 515, 45 P. 800; Payne v ... Hallgarth, 33 Or. 430, [87 Or. 486] 54 P. 162; Swank ... v. Swank, 37 Or. 439, 61 P. 846; Pierson v ... Fisher, 48 Or. 223, 85 P. 621; Burns v ... Kennedy, 49 Or. 588, 90 P. 1102; Reeder v ... Reeder, 50 Or. 204, 91 P. 1075; ... ...
  • Hanns v. Hanns
    • United States
    • Oregon Supreme Court
    • February 1, 1967
    ...the interest which the deed purports to convey and thus deprives himself of control over that deed. This court, in Pierson v. Fisher, 48 Or. 223, 233, 85 P. 621, 625 (1906), held: 'The delivery of a deed is accomplished by the grantor's voluntarily passing it to the grantee or handing it to......
  • Miller v. Weaver
    • United States
    • Oregon Supreme Court
    • December 14, 1915
    ... ... Flint v ... Phipps, 16 Or. 437, 19 P. 543; Swank v. Swank, ... 37 Or. 439, 61 P. 846; Pierson v. Fisher, 48 Or ... 223, 85 P. 621; State v. Leonard, 73 Or. 451, 144 P ... 113, 681 ... Though ... the ... ...
  • Bingham v. Weber
    • United States
    • Oregon Supreme Court
    • March 4, 1953
    ...692, 696, 21 P.2d 221; Norton v. Norton, 105 Or. 651, 654, 209 P. 1048; Dieckman v. Jaeger, 87 Or. 392, 394, 170 P. 727; Pierson v. Fisher, 48 Or. 223, 233, 85 P. 621; 26 C.J.S., Deeds, § 42, page 237; 16 Am.Jur., Deeds, 508, § 125; 7 Thompson, Real Property, perm. ed., 623, § 4160. It can ......
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