Seed v. Jennings

• Decision Date: 04 December 1905
• Citation: 47 Or. 464,83 P. 872
• Parties: SEED v. JENNINGS et al.
• Court: Oregon Supreme Court

83 P. 872

47 Or. 464

SEED v. JENNINGS et al.

Supreme Court of Oregon

December 4, 1905

Appeal from Circuit Court, Multnomah County; A.F. Sears, Jr., Judge.

Suit by John G. Seed against O.O. Jennings and others. From a decree for defendants, plaintiff appeals. Reversed.

This is a suit to enjoin the sale of real property in Multnomah county, on an execution issued on a judgment recovered by the defendant Jennings against John S. Seed, the father of the plaintiff. On January 4, 1901, John S. Seed was the owner of the property in controversy, and on that day he and his wife conveyed it to the plaintiff, their son, then about 18 years of age, by warranty deed for the expressed consideration of "love and affection, and one dollar," and this deed was duly recorded. Thereafter, and on or about September 1st the plaintiff who was about to go to Chicago for a short time, made to his father a reconveyance of the property with the knowledge expressed however, of all the parties that the deed could be disaffirmed by him on becoming of age. This deed was not placed on record. Seed remained in possession of the property with his wife and son until about the year 1902 when he and his wife separated, since which time the property has been in the possession of the plaintiff. On July 10 1904, the plaintiff became of age and immediately notified his father that he disaffirmed and repudiated the deed previously made by him and demanded to have it canceled. On June 11, 1904, the defendant Jennings commenced an action at law against John S. Seed to recover damages for alienating the affections of his wife, which it was alleged occurred within one year from the filing of the complaint. Seed made default, and such proceedings were thereafter had in the action that on September 12, 1904, Jennings recovered a judgment against him for $5,000, and his costs and disbursements. An execution was issued on the judgment and the property in question seized by the sheriff, and advertised for sale when this suit was commenced by the plaintiff to enjoin the sale, on the ground that the property belonged to him, and not to his father. The defenses to the suit are, in substance: (1) That the transfer of the property by John S. Seed to the plaintiff was made in trust for the grantor, and the trust was subsequently executed by a conveyance thereof by the plaintiff; (2) that at the time of the transfer, Seed was liable in damages to Jennings for alienating the affections of his wife; and such transfer being voluntary, and without consideration, was void as to him. The defendants had decree in the court below, and plaintiff appeals.

J.C Moreland, for appellant.

J.C. Bronaugh, for appellees.

BEAN J. (after stating the facts).

There is no evidence to support the claim that the deed from John S. Seed to the plaintiff was made in trust for the grantor. W.A. Cleland, who drew the deed, testified that Seed said to him at the time that his arrangement with his then partner was not satisfactory and that he was going to close out his business, and leave the country, and desired to deed the property in question to his son and another tract to his wife, "so they would be taken care of." Mrs. Seed says that prior to the making of the deed Seed had often talked of going away, and, as she was not provided for, she told him that she wanted him to give her one of the houses, and he said that he would do so, and would deed the other to the plaintiff "for his education." This is all the testimony in the record as to the purpose for which the deed was made, and clearly shows that it was intended at the time as an absolute conveyance of the land by the father to his son. A voluntary conveyance of property by a parent to a child expressed in the deed as in this case to be in consideration of love and affection is presumed to be an advancement (1 Am. & Eng.Enc.Law [2d Ed.] 765; Lott v. Kaiser, 61 Tex. 665); and this presumption applies here as there is no evidence to rebut it. The title of the property, therefore, passed from John S. Seed to the plaintiff, and as the attempted reconveyance thereof by the plaintiff, made in September, 1901, was promptly disaffirmed by him on coming of age, the title is now in him. Tucker v. Moreland, 10 Pet. 58, 9 L.Ed. 345; Craig v. Van Bebber, 100 Mo. 584, 13 S.W. 906, 18 Am.St.Rep. 662, and note; Scranton v. Stewart, 52 Ind. 68; Long v. Williams, 74 Ind. 115; Green v. Green, 69 N.Y. 553, 25 Am.Rep. 233.

But it is urged that, in any event, Jennings had a cause of action against Seed at the time the deed was made for alienating the affections of his wife, and was therefore in legal contemplation a creditor of Seed, and as to him the deed is void, because made voluntarily, and without consideration. Whatever the rule may be in other jurisdictions, it is the doctrine here that one having a right of action for damages against another for tort is a creditor of the wrongdoer within the meaning of section 5508 et seq., B. & C. Comp., declaring conveyances of property made with intent to hinder, delay, and defraud creditors, void as to such creditors. Barrett v Barrett, 5 Or. 411; ...