Robson v. Hamilton

• Decision Date: 21 July 1902
• Citation: 69 P. 651,41 Or. 239
• Parties: ROBSON v. HAMILTON et al.
• Court: Oregon Supreme Court

69 P. 651

41 Or. 239

ROBSON v. HAMILTON et al.

Supreme Court of Oregon

July 21, 1902

Appeal from circuit court, Linn county; R.P. Boise, Judge.

Action by Elizabeth Robson against Juliett Hamilton and others. From a decree for defendants, plaintiff appeals. Reversed.

This is a suit to set aside a deed to real property, and to subject the premises to the satisfaction of a judgment. It is alleged in the complaint, in substance: That about October 1, 1894 the defendant Juliett Hamilton and one Michael Berrigan, to evidence a part of the purchase price of the real property hereinafter described, executed to plaintiff their four promissory notes, of $300 each, payable in one, two, three and four years, respectively, from said date, with interest at 5 per cent. per annum. The three latter not having been paid when due, or at all, she commenced an action in the circuit court for Linn county to recover thereon; and a tract of land consisting of the N.W. 1/4 and the W. 1/2 of the N.E 1/4 of section 5, in township 13 S. of range 1 W. of the Willamette meridian, in said county, was duly attached therein, and on October 23, 1900, a judgment was rendered in said action against Mrs. Hamilton for the sum demanded, and said premises were ordered sold, and an execution, having been issued thereon, was returned nulla bona. That on October 5, 1896, Mrs. Hamilton, being the owner of said land, which was then and now of the value of $1,400, and of certain personal property of the value of $400, and being deeply indebted and unable to pay her creditors, for the purpose of hindering and delaying whom, and without any consideration therefor, executed to her mother, the defendant Mary M Jones, a pretended deed of said premises, which has been duly recorded. That about that time Mrs. Jones advanced to her daughter Mrs. Hamilton the sum of $400, which was afterwards repaid by the sale of personal property belonging to the latter. That Mrs. Jones and her husband, the defendant John H. Jones, have at all times known that the pretended transfer by Mrs. Hamilton rendered her insolvent, and that she made said deed to her mother, to hinder, delay, and defraud her creditors. Mrs. Hamilton, answering separately, denied that the deed was made to hinder, delay, or defraud her creditors, and alleged that at the time she signed it her father and mother well knew of her indebtedness, and of her probable inability to pay the same; that said deed was made in pursuance of an agreement whereby her parents were to keep and educate her children, and to permit her to make her home with them whenever she so desired, in consideration of which they were to have the use of all that part of said land that should remain after conveying enough of it to plaintiff to pay the sum due her; that, in order more conveniently to carry out the terms of their agreement, she signed and acknowledged the deed to her mother, and placed it in her trunk until she obtained security for the faithful performance of their contract, but without her knowledge or consent it was taken therefrom and placed on record. The defendants Mary M. and John H. Jones, answering jointly, denied the material allegations of the complaint, and alleged that the plaintiff and their daughter had entered into a fraudulent agreement, in pursuance of which said judgment was rendered against her, with the understanding that she would not be required to pay any part thereof; that the deed was executed by Mrs. Hamilton to her mother in good faith and for a valuable consideration, and accepted by the latter without any knowledge or notice of Mrs. Hamilton's preexisting indebtedness; that in May, 1896, Mrs. Hamilton executed to said defendants a note for the sum of $1,000, secured by a mortgage on said land, the consideration for the note being the sum of $400 in money advanced to her, and the settlement of a claim for the board and care of her children, and for the time employed and expense incurred in making a journey from Illinois to Oregon at Mrs. Hamilton's request, which board, care, expense, and time were reasonably worth the sum of $600; that about June 18, 1896, Mrs. Hamilton delivered to said defendant 13 head of cattle, worth $10 each, the value of which was to be credited on her mortgage note, which could not then be found, but was afterwards discovered in her possession; that in consideration of the cancellation of said mortgage, and the receipt of a cow and a cook stove, and the settlement of said account, and for the future support of Mrs. Hamilton's children, she executed said deed, the consideration for which was paid without notice or knowledge of her pre-existing indebtedness; that since securing the deed, and without notice of any claim upon plaintiff's part, said defendants have made permanent improvements upon said land of the value of $446; and that the real property at the time Mrs. Hamilton's deed was executed was of no greater value than $500, and now worth not more than $946. The reply put in issue the allegations of new matter in the answer of Mr. and Mrs. Jones, and, at the trial which followed, the plaintiff's counsel introduced their testimony and rested, whereupon the court dismissed the suit, and plaintiff appeals.

H.C. Watson, for appellant.

P.R. Kelly, for respondents.

MOORE C.J. (after stating the facts).

The plaintiff's deposition offered in evidence is to the effect that in the summer of 1894 she was the owner of said land, upon which she was then living, and having a son held in the jail of Linn county, Or., awaiting examination upon a charge of larceny, the defendant Juliett Hamilton informed her that her husband and another son were liable to be sent to the penitentiary for crimes committed by them, and suggested that if she would convey said land to her, and leave the state with her husband and the latter son, and not return or permit her residence to become known to her friends in Oregon, the son who was in jail could attribute the theft with which he was charged to the brother who had gone away and thus escape punishment; and, fearing that her husband and other son might be apprehended, she accepted the advice of Mrs. Hamilton, and in pursuance thereof executed to her a bill of sale of certain personal property, and a deed of said land, receiving therefor the promissory notes hereinbefore described and $250 in cash, with which she went to California, leaving her son in jail, and taking her husband and the other son with her, and that she did not correspond with any of her relatives until about October, 1896. Certain letters written by Mrs. Hamilton to plaintiff, and properly identified, were attached to the deposition and...