Weaver v. Owens

Decision Date15 May 1888
Citation16 Or. 301,18 P. 579
PartiesWEAVER v. OWENS et al.
CourtOregon Supreme Court

Syllabus by the Court.

Appeal from circuit court, Douglas county.

Action by George Weaver, administrator with the will annexed of Hans Weaver, deceased, against Esther Owens and C.W. Johnson, as administrator of W.F. Owens, deceased, to set aside a certain deed to the defendant Owens as being fraudulent with respect to plaintiff and other creditors of the estate of said W.F Owens. The defendant Johnson did not appear.

J.W Hamilton and J.C. Fullerton, for appellant.

Lane &amp Lane and W.R. Willis, for respondent.


The appellant, as such administrator, on the 24th day of September, 1886, commenced an action in said circuit court against the said W.F. Owens upon a promissory note executed by him to the said Hans Weaver in his life-time. A writ of attachment was issued in the action, and certain property belonging to said Owens was attached by virtue thereof. Owens died on the following day after the action was commenced. He, as a matter of fact, committed suicide. The action was continued against Owens' said administrator, and a judgment for the sum of $3,000 and costs was recovered therein, and an order granted to sell the attached property. Said property was sold in accordance with said order, and $602.71 realized therefrom. Subsequently a general execution was issued upon the judgment, which having been returned unsatisfied, the appellant brought a suit against the respondent to set aside as fraudulent a certain deed to lots 1 and 2, block 53 B, in Railroad addition to the city of Roseburg, Or., executed by one W.H. Kearnan to the respondent on the 14th day of February, 1885, in which suit said Johnson, as such administrator, was included as a defendant; but failed to interpose a defense therein. The appellant alleged in his complaint in said suit that on said 14th day of February, 1885, and prior thereto, the said W.

F. Owens was largely indebted to Hans Weaver, appellant's testator, and to other parties, and that at said date, and at all times thereafter, was wholly insolvent; that the said Owens purchased the said lots from said Kearnan, well knowing his insolvent condition, and caused the deed thereto to be made to the respondent, his daughter, who was only about 15 years of age, and who, at the time, was residing with her father, being supported by him; that said W.F. Owens caused the said property to be so conveyed, with intent to cheat, hinder, delay, and defraud the said Hans Weaver, and his other creditors, and for the express purpose of preventing the said property from becoming liable to the payment of his debts; that the respondent did not furnish the purchase money for said property, or any part thereof, and has no interest whatever therein other than to hold the legal title for the benefit of her father. The respondent, by her guardian ad litem, filed an answer to the complaint, denying all the material allegations therein contained. The case coming on for hearing before the said circuit court upon the allegations, and the proofs taken therein, the said court found that it was not true that said Owens caused the said deed to be so executed, and that the respondent was entitled to a decree dismissing the complaint; which is the decree appealed from herein. The appellant's counsel insist that upon the complaint, and the testimony coming here with the transcript, that a decree should have been given in the appellant's favor, for the relief claimed in his complaint. Said counsel have submitted a list of authorities in support of their position, but the question to be determined is purely one of fact.

The law adjudges that certain facts and circumstances, in such cases are indicia of fraud, but the intent must be proved and found as a fact by the jury where the case is tried by a jury, and by the court when it is to be determined by the latter. The fraudulent intent is seldom susceptible of direct proof, but facts and circumstances must be established from which it can be reasonably inferred. The statute declares that the fraudulent intent shall be deemed a question of fact, and not of law. Section 3062, Code. Hence the same rules of proof apply to other cases involving questions of a similar nature. The allegation must be established by a preponderance of evidence. Nor will the establishment of the fact that the conveyance was made with the intent to defraud creditors be alone sufficient to entitle a plaintiff to relief. He must aver and prove that he was hindered, delayed, and defrauded. The language of the statute is that the fraudulent act, "as against the person so hindered, delayed, or defrauded, shall be void." Concluding part of section 3059, Code. The plaintiff must allege and show, not only that the defendant did the act with the intent mentioned, but that he was so hindered, delayed, or defrauded. The complaint in the suit herein contains no allegations of the value of the lots referred to, or that Owens paid any money therefor, nor that the appellant's testator was in any manner injuriously affected in consequence of the transaction. How can it be known from the complaint, or from the proofs, as to that matter, whether Hans Weaver was not cognizant of the fact that W.F. Owens had the deed to the lots executed to the daughter, and acquiesced in it, when he executed the bond on the 27th day of March, 1885, out of which the indebtedness to him is supposed to have arisen? There is no allegation in the complaint that it was done secretly or clandestinely, or that Weaver was ignorant of the fact; and the evidence discloses that Owens talked freely with other parties of his having purchased the property for his daughter. It appears from the proofs that Owens wanted credit at the bank, and, as collateral security for balances from overdrafts; he executed bonds to the bank, and said Hans Weaver, R. Phipps, and others became sureties for him thereon. The first bond was for the sum of $10,000, which was executed some time prior to the 14th day of February, 1885. The amount of the bond was placed to Owens' credit upon the books of the bank, and he drew checks, drafts, and orders against it. The amount of his account varied from time to time. On the said 14th day of February the amount of balance on an overdraft was nearly $7,000. Subsequently, and on the 27th day of March, 1885, this bond was surrendered up, and another for the sum of $15,000 was executed by the same parties, and put in its place. Owens continued his account with the bank, which amounted, debit and credit, at the time of his death, to $50,000. The balances, I suppose, were made up daily, and the amount against him at his death was upon drafts, etc., drawn within the three or four months next prior thereto. How much that balance was, does not appear from the briefs of counsel, but it will not be presumed to have exceeded the penalty named in the new bond. The inquiry, then, is, did Owens, with intent to defraud Weaver out of his claim on account of his becoming surety for him on these bonds, or either of them, cause the said two lots to be conveyed to his daughter, as alleged? That question must be solved like any other question of fact. The reply must come from the proofs. It cannot be answered by metaphysical reasoning drawn from supposed facts or adjudged cases. Every case involving such a question must be determined by its own peculiar circumstances. The abstruse distinctions made by courts in cases before them can be of very little assistance to us. We must take the facts established by the proofs in this case, and draw such inferences and conclusions as our knowledge of human affairs and our best judgment dictates. That, in my opinion, is the only proper course to be pursued. We sit here in this matter more in the capacity of a jury than of a court; and we should consider it in the light of that understanding of the dealings and transactions of men in general which is gained from observation and experience. The evidence upon the part of the appellant given in support of the allegation of a fraudulent intent upon the part of Owens in having the lots deeded to his daughter is very slight and inconclusive. The deposition of J.J. Thornton, a witness on behalf of the appellant, shows that witness and his father had a mortgage on the lots for $250; that witness met Owens and Kearnan in the court-house, looking over papers,--the mortgage he "reckoned," and Mr. Owens told him that he would pay the mortgage, and to let it run until the time run out; that he did not know what was the consideration paid to Kearnan for the property,--"only what Kearnan told him." Upon being asked what Kearnan told him, he answered, under objection, that, if he had not forgotten, it was $800. The deposition of A.W. Caulfield, another witness for the appellant, shows that he (witness) performed labor on the building on the lots, but the time he could not specify; that Owens hired him to do the work, and paid him; that it was after the reported sale from Kearnan; that Owens said he had bought the lots; that he supposed Owens was in possession of the property; that he seemed to have control of it, but about that same time he claimed that he had given the lots to Esther; he remarked that Effie, the oldest girl, was displeased because he had given Esther the Kearnan house, which was a better house than the one he had given her; that he said this at the time witness was working on the house; that he judged from what he had heard that Esther, on the 14th day of February, 1885, was about 15 years of age; that she lived with her parents. This is the substance of the entire evidence regarding Owens' purchase of the lots for the daughter. Copy of the deed was given in proof, and formally...

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4 cases
  • Evans v. Trude
    • United States
    • Supreme Court of Oregon
    • January 30, 1952
    ...other than adjudging what constitutes badges of fraud. Clarke v. Philomath College, supra, 99 Or. at page 377, 193 P. 470; Weaver v. Owens, 16 Or. 301, 304, 18 P. 579. Badges of fraud or, as they are sometimes called, the indicia of fraud are accompanying circumstances tending to excite sus......
  • Crawford v. Neal Neal v. Crawford
    • United States
    • United States Supreme Court
    • April 18, 1892
    ...13 Pac. Rep. 643; Philbrick v. O'Connor, 15 Or. 15, 13 Pac. Rep. 612; Weber v. Rothchild, 15 Or. 385, 15 Pac. Rep. 650; Weaver v. Owens, 16 Or. 301, 18 Pac. Rep. 579; Taylor v. Miles, 19 Or. 550, 25 Pac. Rep. 143. And this court accepts the construction given to such a state statute as cont......
  • Marion Automobile Co. v. Brown
    • United States
    • Supreme Court of Oregon
    • December 29, 1928
    ......Garnier v. Wheeler, 40 Or. 198, 66 P. 812; Clarke v. Philomath College, 99 Or. 366, 193 P. 470, 195 P. 822; Weaver v. Owens, 16 Or. 301, 18 P. 579; Hesse v. Barrett, 41 Or. 202, 68 P. 751; 27 C.J. "Fraudulent Conveyance," §§ 133-156;. 12 R. C. ......
  • Clarke v. Philomath College
    • United States
    • Supreme Court of Oregon
    • November 16, 1920
    ...by which it may be determined, further than it adjudges what acts are indicia of fraud, and which constitute badges of fraud. Weaver v. Owens, 16 Or. 301, 18 P. 579; 12 R. C. L. p. 477, § 10. In determining the legality or illegality of an alleged fraudulent conveyance, the courts inquire w......

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