Toedtemeier v. Toedtemeier

• Decision Date: 08 July 1931
• Citation: 300 P. 1025,137 Or. 28
• Parties: TOEDTEMEIER v. TOEDTEMEIER ET AL.
• Court: Oregon Supreme Court

300 P. 1025

137 Or. 28

TOEDTEMEIER v. TOEDTEMEIER ET AL.

Supreme Court of Oregon

July 8, 1931

Department 2.

Appeal from Circuit Court, Linn County; L. H. McMahan, Judge.

Suit by Henry Toedtemeier against Louis Toedtemeier and others. From a decree dismissing the suit, plaintiff appeals.

Reversed and remanded, with directions.

Wm Hammond, of Oregon City, for appellant.

Mark Weatherford, of Albany (Weatherford & Wyatt, of Albany, on the brief), for respondent Rose Toedtemeier.

BELT J.

This is a suit to foreclose three mortgages on real property in Linn county. The land in question was purchased by S. G. Hogue from A. M. Templeton on August 30, 1920, the purchaser assuming and agreeing to pay two mortgages aggregating $5,000, dated January 25, 1915, in favor of the state land board. On August 3, 1921, S. G. Hogue and wife executed a mortgage to A. M. Templeton for $1,250 securing two notes; one for $500 and the other for $750 covering the property described in the first cause of suit. On the same date Hogue and his wife gave an additional mortgage to A. M. Templeton for $1,250, securing two similar notes ($500 and $750) covering the property described in the second cause of suit. On April 14, 1923, S. G Hogue and wife conveyed all of the land to the defendant Louis Toedtemeier, and the grantee assumed and agreed to pay the above-described mortgages. On May 12, 1923, Templeton assigned his two mortgages to the plaintiff, Henry Toedtemeier, a brother of the defendant Louis Toedtemeier. One assignment was recorded September 20, 1926, and the other on May 6, 1927. In the third cause of suit it is alleged that the plaintiff, on January 9, 1925, at the special instance and request of defendant Louis Toedtemeier, paid to the state land board, in satisfaction of its two mortgages, the sum of $1,551.97. It is further alleged that, to secure the repayment of the money thus paid to the state land board, the defendant Louis Toedtemeier executed his note and mortgage in favor of his brother, the plaintiff herein, in the sum of $1,550. This mortgage, which was an incumbrance upon all of the land described in the complaint, was not recorded until July 13, 1927. On January 13, 1928, defendant Rose Toedtemeier obtained a decree of divorce from defendant Louis Toedtemeier wherein the court, in accordance with the stipulation of the parties with reference to a property settlement, decreed that the wife was entitled to an undivided one-third interest in the property involved in this suit.

It is the contention of the defendant Rose Toedtemeier that the money paid to Templeton for the assignment of the mortgages and that which was paid to the state land board, in satisfaction of its mortgages, belonged to her former husband, Louis Toedtemeier, and that a conspiracy existed between him and his brother, the object and purpose of which was to defraud her of any property which she might obtain in the divorce proceeding.

The trial court found that the transactions between Louis Toedtemeier and his brother Henry were fraudulent, and therefore dismissed the suit to foreclose the mortgages. It was further decreed that Rose Toedtemeier was the owner of an undivided one-third fee in the property described in the complaint, free and clear of any lien by virtue of the assignments to plaintiff or the mortgage of Louis Toedtemeier to plaintiff.

In our opinion, it has not been established by a preponderance of the evidence that Louis Toedtemeier and his brother were engaged in a fraudulent scheme or plan as alleged. After Louis Toedtemeier was divorced from his...