Starr v. De Lashmutt

• Decision Date: 12 November 1896
• Docket Number: 2,147
• Citation: 76 F. 907
• Parties: STARR et ux. v. DE LASHMUTT et al
• Court: U.S. District Court — District of Oregon

76 F. 907

STARR et ux. v. DE LASHMUTT et al

No. 2,147

United States Circuit Court, D. Oregon.

November 12, 1896

M. L Pipes, for plaintiffs.

W. L Perry, for defendants.

BELLINGER District Judge.

The question for decision in this case arises upon the exceptions to the answer of Van B. De Lashmutt and wife to the cross bill of Starr and wife. De Lashmutt and wife, from whom the German Savings & Loan Society obtained a mortgage to the premises in controversy, took their title from Bridget Lavin the mother of the Defendant William L. Starr, and from whom he claims. Starr and wife, in their complaint, undertake to impeach the conveyance of their ancestor to De Lashmutt, by alleging that she was insane at the time of said conveyance and that said De Lashmutt, theretofore, and at that time, and thereafter, until the death of the said Bridget Lavin, was the agent and confidential adviser of said Bridget, and as such agent and confidential adviser took advantage of her, and that her said deed was the result of the undue influence and fraud practiced upon her by the said De Lashmutt. To this complaint De Lashmutt and wife, among other things, say:

'That they do not know and cannot set forth, as to their belief or otherwise, whether or not, at the said time, or in doing the said acts averred in said cross bill, the said Lavin had great, or any, confidence in this defendant Van B. De Lashmutt, or reposed confidence in him on account of the confidential relations said defendant sustained to her, as averred in said cross bill, in the management of her property or business affairs, or as to whether or not, at said time, or in so doing, she yielded to the persuasions or solicitations or directions so fraudulently, as alleged, made by said Van B. De Lashmutt, on account of or by reason of her said alleged confidence in him or his said alleged influence over her.'

The answer also alleges as follows:

'And in connection with the alleged fraudulent transactions of this defendant Van B. De Lashmutt, in the matter of the said deed, and his alleged fraud and undue influence upon said Lavin in the procurement of the execution, acknowledgment, delivery, and recording thereof, and the absence of any consideration therefor, these defendants allege the fact to be, and would show unto your honors as follows: That for some time prior to the date of the said deed this defendant Van B. De Lashmutt had been the agent of said Bridget Lavin in the matter of the care and management of her real property in the city of Portland, including the real property described in the cross bill; that, in pursuance of said employment, said defendant had collected the rents and profits of said real property, and had incurred disbursements on account of the same, and had from time to time advanced various sums of money to the said Bridget Lavin; that, at the date of the said deed, the state of the account between said defendant and said Lavin was such that she was indebted to said defendant in

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