Toney v. Toney

• Decision Date: 22 May 1917
• Citation: 84 Or. 310,165 P. 221
• Parties: TONEY v. TONEY ET AL.
• Court: Oregon Supreme Court

165 P. 221

84 Or. 310

TONEY v. TONEY ET AL.

Supreme Court of Oregon

May 22, 1917

In Banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

Suit by Jesse D. Toney against Alta E. Toney and O. C. Olsen. From a decree for plaintiff, defendant Toney appeals. Affirmed.

This is a suit brought to set aside a deed executed by plaintiff in favor of appellant on the 7th of September, 1915, to lot 6 in block R, lot 9 in block F, and lots 4, 7, and 8 in block L in the townsite of Haines, Baker county; the said deed also purports to transfer to appellant some furniture and household goods and an automobile. It appears that plaintiff and appellant were married in November, 1911. That in October, 1914, appellant brought suit for divorce against plaintiff. The suit was contested. A decree was passed on the 25th of June, 1915, granting appellant a divorce, giving her a money judgment for $1,063.33 and a one-third interest in the property in dispute in this case, all of which belonged to plaintiff prior to the date of the said decree. Appellant was also given by the decree a one-ninth interest in 280 acres of land in Baker county, an undivided one-third interest in which had belonged to plaintiff. Immediately after the entry of the decree in her favor appellant issued execution, levied on plaintiff's property, and forced payment of her money judgment. Appellant subsequently sold to plaintiff's brothers her undivided interest in the 280 acres of land, receiving therefor $1,667. On the 31st of August appellant brought suit against plaintiff for the partition of the property involved in this litigation, and a few days thereafter plaintiff executed the deed in controversy. Appellant having acquired all of the property involved in the partition suit, this suit was dismissed. The case at bar was brought on the 25th of April, 1916. Plaintiff bases his claim to a cancellation of the deed on the fact that it was executed without consideration; that he was intoxicated at the time when the deed was executed; and that he was the victim of fraud, artifice, and imposition on the part of appellant. Shortly after the bringing of this suit and on the 8th of May, 1916, a deed was placed of record in Baker county, whereby appellant transferred the property in dispute to O. C. Olsen. A supplemental complaint was filed joining Olsen as a party defendant, and subsequently, and under date of July 1, 1916, Olsen reconveyed to appellant. No answer was filed by Olsen, nor was he called as a witness. The findings of the lower court were in accord with plaintiff's contentions, and a decree was entered setting aside the deed and giving plaintiff judgment against appellant for $1,400, being the value of the automobile, and $500 being the value of the furniture and household goods. This personal property had been taken out of the state by appellant, and the only relief which an Oregon court could give plaintiff was a money judgment for the value of the property. The defendant Alta E. Toney appeals.

J. B Cordiner, of Spokane, Wash. (Cordiner & Cordiner, of Spokane Wash., and O. B. Mount, of Baker, on the brief), for appellant. Joseph J. Heilner, of Baker (James H. Nichols, of Baker, on the brief), for respondent.

McCAMANT J. (after stating the facts as above).

Appellant's explanation of the execution of the deed in controversy is that plaintiff sought an interview with her on the morning of September 6, 1915; that he expressed a desire that appellant should have all of the property involved in the partition suit, stating that he had not treated her properly during their married life. She claims that the deed was executed pursuant to this understanding, and that plaintiff thoroughly understood its import. Plaintiff claims that an arrangement was entered into between the parties on this same day for the settlement of the partition suit, appellant to take two houses, including the one in which the parties had been living, and plaintiff to take the remainder of the property. Plaintiff testifies that he suggested that the parties should go over to the bank in Haines and execute the necessary deeds; that appellant refused to do this, insisting that the papers should be made out by her attorney at La Grande; that on the following day the parties went to La Grande; and that appellant fraudulently prepared a deed covering all of the property involved in the partition suit, the household furniture and effects, and plaintiff's automobile as well. Plaintiff further claims that while he was under the influence of liquor he was induced to sign the deed without reading it, under the belief induced by appellant that the deed was operative merely to convey to appellant that portion of the real property which she was to receive under the verbal agreement entered into for the settlement of the partition suit.

The deed recites a consideration of $1 and other valuable considerations. Appellant contends that this recital is binding on plaintiff, and that evidence is not admissible for the purpose of showing that the conveyance was executed without consideration. In support of this contention the case of Finlayson v. Finlayson, 17 Or. 347, 21 P. 57, 3 L. R. A. 801, 11 Am. St. Rep. 836, is cited. If this case sustains the contention of appellant in this regard, it must be deemed to be overruled by the later decisions of Velten v. Carmack, 23 Or. 282, 288, 31 P. 658, 20 L. R. A. 101, and North American Co. v. Cole, 61 Or. 1, 6, 118 P. 1032. These later decisions establish the principle that where a deed is attacked on the ground of fraud or imposition, the recital of a consideration therein is only prima facie evidence that the consideration has in fact been paid. A fraudulent grantee, in other words, cannot tie the hands of a court of equity by inserting in the deed such a recital contrary to the fact. This we understand to be the rule in other jurisdictions. 13 Cyc. 614; 17 Cyc. 651 to 652, and cases cited. In this case there is no contention that a consideration was given plaintiff for the property described in the deed. The evidence indicates that the property was worth in the neighborhood of $6,000.

Where property is conveyed without consideration, and the circumstances unequivocally rebut the presumption of a gift, equity will charge the grantee with a resulting trust in favor of the grantor. Bennett v. Hutson, 33 Ark. 762; Giffen v. Taylor, 139 Ind. 573, 37 N.E. 392; Myers v. Jackson, 135 Ind. 136, 34 N.E. 810, 812; Lingenfelter v. Ritchey, 58 Pa. 485, 98 Am. Dec. 308; McDermith v. Voorhees, 16 Colo. 402, 27 P. 250, 25 Am. St. Rep. 286. This court is committed to a doctrine closely approaching that announced in the foregoing authorities. Gray v. Beard, 66 Or. 59, 68, 133 P. 791.

Do the circumstances of this case clearly rebut the presumption that plaintiff intended to give the property in dispute to appellant? It appears from the testimony that both plaintiff and appellant had been previously married; that their married life was infelicitous; that the divorce suit was contested that during the pendency of the suit plaintiff was obliged by the court to provide appellant with suit money; that immediately after the divorce decree appellant sued out execution...