Templeton v. Cook

• Decision Date: 27 January 1914
• Citation: 69 Or. 313,138 P. 230
• Parties: TEMPLETON v. COOK ET AL. [d]
• Court: Oregon Supreme Court

138 P. 230

69 Or. 313

TEMPLETON v. COOK ET AL. ^[d]

Supreme Court of Oregon

January 27, 1914

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Suit by C. R. Templeton against W. E. Cook and others. From the decree, defendants W. E. Cook and wife appeal. Affirmed in part, and reversed in part, and counterclaim dismissed.

George S. Shepherd, of Portland (Edward Joshua Clark, of Portland, on the brief), for appellants. Reed & Bell, of Portland, for respondent Wentworth. Ralph R. Duniway, of Portland (C. L. Whealdon, of Portland, on the brief), for respondent C. R. Templeton. R. Sleight, of Portland (Stapleton & Sleight, of Portland, on the brief), for respondent Morrison.

EAKIN J.

This is a creditor's suit to reach property in the hands of a third party, namely, money due from the defendant Wentworth to the defendant W. E. Cook, as the price of land sold by W E. Cook to him; the price being made payable to Martha E Cook, which is alleged to have been done in fraud of plaintiff's rights. The facts out of which this proceeding arose are that the plaintiff, having a chattel mortgage on an automobile to secure the payment of the sum of $2,000, brought an action of replevin to recover possession of the automobile; and soon thereafter brought a suit against Lloyd, the mortgagor, to foreclose the mortgage.

In the suit the defendant Lloyd contended that the debt secured was in the sum of $700 only. Both cases were brought to the Supreme Court. This court held in the suit that the plaintiff gave full value for the $2,000 note and mortgage and rendered a decree affirming the decree of the lower court, which was a judgment for $2,000, and for the sale of the mortgaged property ( Templeton v. Lloyd, 59 Or. 50, 115 P. 1067), and affirmed the judgment of the lower court in the replevin action for the possession thereof. Upon the appeal in the suit W. E. Cook was surety on the undertaking for appeal, and judgment was rendered against him also for the sum of $2,000, the amount of the decree and costs.

By the answer in the present case the defendants attempted to raise an issue that the Lloyd debt secured by mortgage was not $2,000, but only $700, and that that amount had been paid; but the amount of the debt is res adjudicata in the decree and cannot be questioned in this proceeding. Templeton v. Lloyd, supra. The answer in this case seeks again to revive the issue as to the consideration for the mortgage--different from that made in the suit of Templeton v. Lloyd; but that issue is concluded by the decree in the former suit. If any payment of that judgment has been accepted expressly or impliedly by the plaintiff in lieu of that provided for in the judgment, it would be a defense here; but no facts are alleged tendering such an issue.

The second defense is that the land sold by W. E. Cook and his brother to Wentworth was an inheritance from their father, but that Martha E. Cook, the wife of W. E. Cook, had an inchoate dower interest in W. E. Cook's part thereof, and that it was agreed that the balance of the price of W. E. Cook's part, after payment of the expenses and less $1,200 already paid to him, should be paid to Martha E. Cook, which was alleged to be in consideration of her interest in the land. There is no showing as to what the law of Minnesota is as to the wife's dower, but in any event the value thereof was very small and incapable of definite ascertainment for the reasons shown in Kuratli v. Jackson, 60 Or. 203, 118 P. 192, 1013, and there are no facts before us from which we can estimate it. It is sufficient to say that it appears from the evidence that the provisions for the payment to Martha E. Cook of W. E. Cook's part of the money, the price of the Cook land sold to Wentworth, was intended to put it out of the reach of the creditors of W. E. Cook and especially of this plaintiff; and the decree on the issues between the plaintiff and W. E. and Martha E. Cook should be affirmed.

There was a pleading filed in this case by Finley Morrison labeled "cross-complaint"--we suppose meaning cross-bill. This record does not show what the title of the original creditor's suit begun by C. R. Templeton was, nor whether or not Morrison was a party defendant. None of the parties have questioned Morrison's right to file this pleading as a cross-complaint, but there is no such pleading known to our practice in equity cases....