Wade v. Northup

• Decision Date: 07 April 1914
• Citation: 140 P. 451,70 Or. 569
• Parties: WADE ET AL. v. NORTHUP ET AL. [d]
• Court: Oregon Supreme Court

140 P. 451

70 Or. 569

WADE ET AL. v. NORTHUP ET AL. ^[d]

Supreme Court of Oregon

April 7, 1914

Department 1.

Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.

Suit by Henry Wade and others against Hazel Northup and another. From a decree for defendants, plaintiffs appeal. Modified.

This is a suit having the double aspect of asking that a mistake in the description of land in the conveyances of plaintiff be corrected, and that an alleged unfounded claim of one of the defendants be declared void. The mistake was denied by the defendants, and an answer in the nature of a cross-bill was filed by them to the effect that the deeds under which plaintiffs claim were obtained from the grantor, one of the defendants, by fraud, and while she was insane, and asking that those conveyances be canceled and held for naught. The reply denied the allegations of fraud and insanity, and otherwise traversed the answer. From a decree setting aside the deeds in question, the plaintiffs appeal.

O. P Coshow, of Roseburg, for appellants. J. O. Watson, of Roseburg (Cardwell & Watson, of Roseburg, on the brief), for respondents.

BURNETT J.

There were three brothers and their three sisters: Robert Wade John M. Wade, Henry Wade, Isabel Ozouf, Anna W. Spencer, and Rebecca Butler. Robert died intestate, seised of a large area of lands in Douglas county, Or., and leaving as his only heirs his brothers and sisters who succeeded to his estate under the statutes of descent. Isabel Ozouf has a large amount of property in her own right, besides inheriting a considerable estate from her deceased husband. After the conveyances were made, which the answer attacks, Rebecca Butler died intestate so far as the record here shows. She left four living children surviving her, to wit, Joseph R Butler, Annie Conlisk, Kate Flye, and Mamie Smiley, besides four grandchildren, offspring of one of her deceased children, namely, Hazel Northup, Annie Northup Alice Reed, and William Reed. During the lifetime of her husband, Isabel and he joined in a power of attorney authorizing John A. Black to transact business for them, and he acted as their agent for a considerable period while Mr. Ozouf yet lived. After the death of her husband, Mrs. Ozouf executed a general power of attorney to Black, the terms of which will be more particularly noted further on in this opinion. In pursuance of this general power of attorney, Black, on February 8, 1908, conveyed to John M. Wade, Henry Wade, Anna W. Spencer, and Rebecca Butler, the interest of Mrs. Ozouf in certain timber lands inherited from the estate of her brother Robert Wade. This conveyance was made upon the consideration of $10 and other good and valuable considerations. In the following January, Black, still acting under the same authority, conveyed the interest of Mrs. Ozouf in other lands derived from her brother's estate, to the same parties, naming as the inducement "one dollar and other good and valuable considerations." Still later, during the year 1910, on the petition of Hazel Northup, the county court of Douglas county adjudged Mrs. Ozouf insane, and appointed John A. Black as her general guardian. Meanwhile Rebecca Butler had died leaving the four children and four grandchildren above mentioned as her heirs. On September 20, 1912, John M. Wade, Henry Wade, Anna W. Spencer, and the surviving children of Rebecca Butler began this suit against Isabel Ozouf and grandchildren of Rebecca Butler already mentioned, to correct an alleged mistake in the conveyances executed by Isabel Ozouf through her attorney in fact.

The complaint further alleges that Hazel Northup claims a greater interest than the one-eightieth of the share in Robert Wade's estate cast upon her grandmother Rebecca Butler by the conveyance in question, and prays that she be restricted to a claim of one-eightieth. The general guardian of Isabel Ozouf, John A. Black, filed an answer on her behalf admitting the mistake and consenting to the correction of the same as prayed for in the complaint. Afterwards Hazel Northup filed a petition in the circuit court where the suit was pending, showing in effect that the general guardian was interested in the result of the suit by reason of having participated in the purchase of the interest of John M. Wade in the property involved, and prayed that she herself be appointed guardian ad litem in this suit on behalf of Isabel Ozouf; and the court accordingly made an order appointing her such guardian ad litem. Operating under this order as to Isabel Ozouf, the defendants filed an answer which concerning Hazel Northup alleges that during the lifetime of Mrs. Ozouf's husband he and his wife adopted said Hazel as their own child, and that she claims no greater interest in the property involved than would descend to her in case of the death of Isabel Ozouf intestate. On behalf of Annie Northup, Alice Reed, and William Reed, the answer disclaims any interest in the real property by virtue of the alleged deeds from Isabel Ozouf executed by her said attorney in fact. The answer further contains this allegation: "And the defendants allege that for the purpose of cheating and defrauding the said Isabel Ozouf, and the defendant Hazel Northup, in the event of the death of Isabel Ozouf, the plaintiff Anna W. Spencer, and John A. Black, the son-in-law of said Anna W. Spencer, conspiring together, did, at a time when the said Isabel Ozouf was insane, to wit, on the 23d day of July, 1907, procure a pretended general power of attorney from said Isabel Ozouf, an insane person, purporting to appoint the said John A. Black her attorney in fact; that said Anna W. Spencer and the said John A. Black further conspiring to defraud and cheat the defendants Isabel Ozouf and Hazel Northup, without the knowledge of the plaintiffs except the said Anna W. Spencer, on the 8th day of February, 1908, for the recited consideration of $10 and other recited good and valuable considerations, through said power of attorney procured as aforesaid by said John A. Black, did cause a deed to be pretended to be made and executed by Isabel Ozouf, by John A. Black, her alleged attorney in fact, at a time when the said Isabel Ozouf was insane, in favor of the plaintiffs for a portion of the property described in plaintiffs' complaint." And then sets out the conveyance of February 8, 1908. The answer further makes similar allegations concerning the conveyance of January 4, 1909. Knowledge of the alleged insanity of Isabel Ozouf is imputed to all the plaintiffs by the answer. The defendants pray that the deeds executed by the attorney in fact be canceled and held for naught. The allegations of fraud and insanity were traversed by the reply as stated.

At the outset it is apparent that whether Hazel Northup be the adopted daughter of Isabel Ozouf or her own child cannot affect the question here involved. In either event, whether she be a child of the blood or adopted by Mrs. Ozouf, she has no standing to assert or defend any interest which she may expect hereafter in the estate of Mrs. Ozouf. No one can be an heir of a living person. Moreover, parents' lawful children, whether natural or adopted, have no interest in the estate of their living parents by virtue of the relationship of parent and child. The expectancy of title by descent, however strong, carries with it no power to assert or defend an interest in the real property of the living ancestry. We decline therefore to consider the question of the regularity of the adoption of Hazel Northup.

It may well be questioned whether the circuit court could rightly authorize Hazel Northup to act as guardian ad litem for Mrs. Ozouf. The only authority vested in such courts to appoint a guardian ad litem is found in sections 32 and 33, L. O. L., providing that a guardian of that kind may be appointed for an infant. Section 1319, L. O. L., vests in the county court the authority to appoint guardians for insane persons, infants, and all who are incapable of conducting their own affairs; and section 1327 states that such a guardian "shall appear for and represent his ward in all legal suits and proceedings, unless when another person is appointed for that purpose as guardian or next friend." It is well open to question, therefore, whether the pleading filed by the general guardian ought not to control this litigation as against Mrs. Ozouf. It is questionable, also, whether she can be bound by the statements filed as a pleading in her behalf by the guardian ad litem. However, the parties actually appearing have treated the case as if Hazel Northup has a present interest to defend, and a right to attack the conveyances in question, and that she has authority in the suit to represent the grantor in those conveyances in the effort to set them aside. Considering, therefore, without deciding, that the attitude occupied in the pleadings and in the argument of the case is correct so far as the proper parties are concerned, we will consider the issues involved as presented at the hearing. There are three: First, the alleged conspiracy of Anna W. Spencer and John A. Black to defraud Mrs. Ozouf; second, the alleged insanity of the latter at the time she executed the power of attorney, and at the time her attorney in fact executed the conveyances in her name; and, third, considering that the power of attorney was valid, whether its terms authorized the acts of the attorney in fact, which are here questioned.

Considering the first of these, it appears in testimony that John A Black is the son-in-law of Mrs. Spencer. There is no word of testimony indicating that either Mrs. Spencer, Mrs. Butler, or either of the two brothers of Mrs. Ozouf ever sought the conveyance executed to them. In fact, it appears in testimony...