Walker v. Harold

• Decision Date: 28 December 1903
• Citation: 74 P. 705,44 Or. 205
• Parties: WALKER v. HAROLD et ux.
• Court: Oregon Supreme Court

74 P. 705

44 Or. 205

WALKER v. HAROLD et ux.

Supreme Court of Oregon

December 28, 1903

Appeal from Circuit Court, Linn County; R.P. Boise, Judge.

Suit by T.F. Walker against G.F. Harold and wife. From a decree dismissing the suit, plaintiff appeals. Reversed.

This is a suit to set aside a deed. The facts are that on March 15 1889, the defendant G.F. Harold was the owner of 240 acres of land in Linn county, at which time he gave his promissory note to W.P. Kaiser for $200, payable in five months, with interest. Thereafter he incumbered the premises by executing mortgages thereon to Henry Keene, Ellen Caldwell, and Parmelia Howard for $600, $800, and $1,200, respectively, and on January 5, 1892, conveyed the land to his wife, the defendant Sarah Harold. Only a part of the note having been paid, Kaiser commenced an action thereon in the circuit court for Marion county, and on October 8, 1894, secured a judgment against Harold for $200, with interest from July 12, 1891, at 8 per cent. per annum until paid, $25 attorney's fees and $14.50 costs and disbursements. The judgment was assigned to plaintiff, and, an execution having been issued thereon and returned nulla bona, this suit was instituted, the complaint stating that the deed given to Mrs. Harold was executed without consideration, and with intent to hinder delay, and defraud her husband's creditors; that it was accepted by her with knowledge of such intent; and that, upon its execution, Harold became, ever since has been, and now is, insolvent. Mrs. Harold alone answering, denied the material allegations of the complaint, and averred that when she secured the deed the land was incumbered, as hereinbefore stated, and that, in addition to the mortgage debts her husband owed Parmelia Howard $400, which several sums she assumed and agreed to pay; that, in pursuance thereof, she discharged the mortgages given to Keene and to Mrs. Howard and also paid the latter the sum so due her, and the interest on the Caldwell mortgage, which sums she advanced in good faith, paying a valuable consideration for the land, and receiving the deed therefor without notice or knowledge of any fraudulent intent on the part of her husband. The allegations of new matter in the answer were denied in the reply, and, a trial being had, it resulted in a decree dismissing the suit, and plaintiff appeals.

H.J. Bigger, for appellant.

J.R. Wyatt, for respondents.

MOORE C.J. (after stating the facts).

It is contended by plaintiff's counsel that the answer not having alleged that the mortgages referred to were executed to evidence bona fide debts or duly recorded, or averred when or how she paid the sums so claimed, or stated that such payments were made from her separate estate without notice or knowledge of any fraudulent intent on the part of her husband, her pleading fails to allege facts sufficient to constitute a defense, and hence the court erred in dismissing the suit. No demurrer was interposed to the answer, in the absence of which its averments should be liberally construed, with a view to substantial justice between the parties. B. & C. Comp. § 85; Fowler v. Phoenix Ins. Co., 35 Or. 559, 57 P. 421; Cederson v. Navigation Co., 38 Or. 343, 62 P. 637, 63 Pac.

763; West v. Eley, 39 Or. 461, 65 P. 798. The answer states facts from which the defense relied upon might reasonably be implied, and, its sufficiency not having been formally challenged, every intendment in its favor will be invoked, and the evidence introduced will be examined to determine whether or not it sustains the theory adopted by the parties and pursued by the trial court. No testimony was offered by either party to establish or disprove the validity of the Keene and Caldwell mortgages of $600 and $800, respectively, and it will be assumed that they were given to evidence just debts, and to secure bona fide loans.

The conclusion thus reached leaves to be considered the amount and validity of the debt claimed to be due Mrs. Howard; the value of the property January 5, 1892; and whether or not Mrs. Harold was an innocent purchaser thereof. The plaintiff having offered evidence tending to support the allegations of the complaint, rested, whereupon Mrs. Harold, appearing as a witness in her own behalf, testified that she inherited from her father $400, and received from her mother, Parmelia Howard, $1,200; that her mother loaned her husband $1,600, of which $1,200 was secured by mortgage, in payment of which it was stipulated that the premises in question should be conveyed to the witness in consideration of her agreement to support her mother, and that in pursuance thereof the deed was executed, and that she had faithfully taken care of and provided for her mother during her life; that $200 of the money received from her father's estate was borrowed by her husband from her mother about October 29, 1887, and used in purchasing a part of the land, and the remaining $200 was secured from her mother about four years thereafter, and used in paying one of their employés; that she was not present when her husband borrowed from her mother any of the money evidenced by the mortgage, but he secured at different times various sums, which he brought home and expended in improving the farm; and that, when the deed was executed to her, she did not know her husband was indebted to Kaiser, or to any other person except the mortgagees. Mrs Ellen Caldwell, as defendants' witness, testified that about 1887 her husband, being indebted to Mrs. Howard on a note for $511, was requested by her to pay a part thereof, so she could aid her daughter in buying a farm, and that he paid her the sum of $200, and that, her husband having died in 1891, she paid Mrs. Howard the remainder due on the note which the latter claimed to have given to Mrs. Harold. The defendant having called as her witnesses J.T. Follis and James Shelton, farmers living near her land, the former testified that in 1892 the value thereof was from $8 to $12, and the latter, from $8 to $10, per acre, and thereupon she rested. The plaintiff was then permitted, over objection and exception, to introduce in evidence a certified copy of Harold's petition praying for the appointment of R.G. Keene as administrator of the estate of Parmelia Howard, deceased, filed in the county court of Marion county, and stating that his mother-in-law died intestate in that county January 23, 1893, and leaving an estate therein; a certified copy of the order of that court appointing Keene, and also a certified copy of another petition filed by Harold in the matter of that estate, averring that on September 30, 1891, he gave to the deceased his promissory note for $1,200, payable on or before five years, with interest at 8 per cent.; a copy thereof being set out, upon which the following indorsement purports to have been made: "Interest paid to date, September 30th, 1892, and eight hundred dollars, $800, within note." It is also stated in the petition that this note was secured by a mortgage on the land in question, and that about January, 1892, Mrs. Howard entered into a contract with the petitioner whereby it was stipulated that upon his furnishing, during her life, bran and feed for her cows, and...