Scoggin v. Schloath

• Decision Date: 09 November 1887
• Parties: SCOGGIN, Adm'r, v. SCHLOATH and Wife.
• Court: Oregon Supreme Court

15 P. 635

15 Or. 380

SCOGGIN, Adm'r, v. SCHLOATH and Wife.

Supreme Court of Oregon

November 9, 1887

Appeal from circuit court, Multnomah county; L.B. STEARNS, Judge.

Tanner Snow & Carey, for appellant.

Caples & Mulkey, for respondents.

STRAHAN J.

In this case the appellant sues as administrator of the estate of Thomas Sherlock, deceased. The object of this suit is to set aside, and to have declared void, for fraud, a certain deed of conveyance made by Thomas Sherlock, in his life-time, to the respondent Dora Schloath. This suit was commenced, and is prosecuted, by the order of the county court of Multnomah county, Oregon, made pursuant to sections 1167 and 1168, Hill's Code. The complaint alleges, among other things, that plaintiff is administrator of said estate; and that claims aggregating something near $1,000 have been duly presented and allowed against said estate; and that there are no available assets applicable to the payment of said claims and the costs and expenses of administration; that Thomas Sherlock in his life-time was seized of 160 acres of land situated on Sauvie's island, in the state of Oregon; that he died on the twelfth day of April, 1886; that on the fifteenth day of July, 1885, he executed to the defendant Dora Schloath a deed conveying to her said land, for the consideration of $100. The complaint further shows that said Sherlock was, during the last two years of his life, addicted to the excessive use of intoxicating liquors, and had become weak in mind and body, and dependent entirely on the Schloaths for care and attention, and for advice as to the management of his property; that the Schloaths, taking advantage of his situation and condition, by the exercise of undue influence, and with the intent to hinder, delay, and defraud the creditors of said Sherlock, induced, persuaded and compelled him to execute the deed in question for the nominal consideration of $100, which in fact was never paid and that said property was of the value of $2,500.

The answer denies the allegations of the complaint, and then alleges that, on or about the fifteenth day of June, 1885, the said Thomas Sherlock and Dora Schloath had an accounting and settlement of all their affairs and business transactions, upon which said accounting and settlement it was found, and ascertained, and mutually agreed upon that said Thomas Sherlock was justly and truly indebted to said Dora Schloath in the full sum of $2,000, for board and lodging, and for money loaned and furnished said Sherlock, and that, in consideration of said sum of $2,000, and the further sum of $100 then and there paid him, the said Sherlock made, and delivered the deed in question. The reply presents an issue as to the new matter in the answer.

An examination of the evidence leads us to the conclusion that Thomas Sherlock drank to great excess during the last two or three years of his life, and that, for some time before his death, his physical as well as his mental organization was greatly impaired, and that his mind had become so weak that he had no power to resist the importunities of those by whom he was surrounded. But although much evidence was given on this branch of the case, it is unnecessary to consider it in this place, for the reason that there is another question presented by this record which is fatal to the validity of the deed in question. The consideration expressed in the deed is $100. The property conveyed is admitted to be worth $2,000 by the defendants, and its real value, according to the evidence, is probably somewhat greater. The debts which the plaintiff represents were in existence at the time of the conveyance. Therefore, as against existing creditors, the deed was constructively fraudulent.

The consideration must be regarded as nominal. Counsel for the defendants seem to realize that this result must follow unless they can support the deed by showing that there was in fact a further and additional consideration to that expressed in the deed, and which is sufficient if shown to be bona fide. The proof offered tends to prove that, about the time of the execution of the deed, Dora Schloath and Thomas Sherlock had a settlement, and that in that settlement Sherlock acknowledged himself to be indebted to her in the sum of nearly $4,000, mainly for board and lodging, and for a few items of money loaned; that this was all the property Sherlock had, and that Mrs. Schloath agreed to take it at $2,000, in full payment and satisfaction of her claim. The evidence on this point, however, does not seem satisfactory for reasons to be more fully stated hereafter. It may be observed now, however, that no...