Weber v. Rothchild

• Decision Date: 09 November 1887
• Citation: 15 Or. 385,15 P. 650
• Court: Oregon Supreme Court
• Parties: WEBER v. ROTHCHILD, impleaded, etc.

15 P. 650

15 Or. 385

WEBER v. ROTHCHILD, impleaded, etc.

Supreme Court of Oregon

November 9, 1887

Appeal from circuit court, Multnomah county; E.B. STEARNS, Judge.

H.T. Bingham and Cornelius Taylor, for respondent.

Emmons & Emmons and Joseph Simon, for appellants.

STRAHAN J.

The objects of this suit were--First, to obtain a dissolution of the marriage existing between plaintiff and the defendant Emil Weber, the care and custody of the children born of said marriage alimony, and one-third of the real property of the defendant Weber; and, second, to set aside and annul, as fraudulent, a certain deed made by the defendant Emil Weber to the appellant Rothchild of certain property in Multnomah county. The deed included the house and lot in the city of Portland where Weber and his wife had resided for a number of years the furniture therein, and a piece of farm land in Multnomah county. The plaintiff obtained a decree in the court below in accordance with the prayer of her complaint, and for $5,000 alimony, and the conveyance to Rothchild was set aside as fraudulent. From so much of the decree as annuls this deed Rothchild has appealed to this court, and the only questions presented here for our consideration are those between the plaintiff and Rothchild.

After the evidence had all been taken in the court below, and before final decree, the court allowed the complaint to be amended so as to conform the pleading to the facts proved. This amended pleading does not affirmatively appear from the record to have been served on Rothchild, nor was it necessary, nor did he file an answer to the same. The new matter inserted in the amended pleading related entirely to the causes of divorce relied upon by the plaintiff, and did not affect the transaction between the defendants as to this property. In addition to this, Rothchild appeared and filed exceptions to the referee's report, and, so far as appears, his answer to the first amended complaint must have been treated as an answer to the second amended complaint, and it has been so treated in this court. It has not been suggested that there is anything in the plaintiff's amended complaint that is not as fully met by this appellant's answer to the first amended complaint as he desired to meet it, and we cannot see that any injury will result to any party by so treating it. In addition to this no objection appears to have been made in any form in the court below to the state of the pleadings, but it is made here for the first time. We will therefore, for the purposes of this case, treat the answer of Rothchild as an answer to the plaintiff's second amended complaint.

The complaint alleges, substantially, that on the third day of November, 1886, the defendant Weber left his place of abode in Portland, Oregon, and absconded, and secreted himself at Denver, Colorado, for the purpose of avoiding the service of a summons in this cause; that he then had in money about $10,000, which he withdrew from Ladd & Tilton's bank, in the city of Portland, and that just prior to his departure from this state he fraudulently assigned and transferred the real and personal property in controversy to the defendant Rothchild, for the purpose of hindering and delaying the plaintiff in the prosecution of her suit for a divorce against Weber, and defeating any decree that might be made therein; that the consideration was inadequate, and that said Rothchild did not purchase said property in good faith, but accepted the conveyance thereof with an agreement that he would reconvey the same to Weber, or such person as he should designate, when thereto requested, and that said Rothchild holds the same in trust for Weber.

The separate answer of the appellant denies the fraud charged, and then alleges that on or about the third day of November, 1886, he purchased the property in controversy in good faith from the defendant Weber, for and in consideration of the full sum of $2,500, paid to said defendant Weber by this defendant. The answer then alleges that the only agreement which the defendant Rothchild made with Weber respecting said property was in writing, a copy of which is then set forth in the answer in haec verba. This agreement bears even date with the deed, and in effect binds Rothchild in the penal sum of $10,000, to be void if he shall perform the conditions specified in said writing on his part to be performed. This agreement recites a money consideration of $2,500, and it is then further stated in said writing, in substance, that a material part of the consideration for said conveyance is the agreement "on my part to resell and reconvey all of said real property, and every portion thereof, to said Emil Weber, upon the payment to me by him of the full sum of $3,000 in gold coin of the United States, at any time within the period of one year from the date of this instrument, and to execute a good and sufficient deed of conveyance for all of the said real property conveying the same title and interest therein which I have received from said Emil Weber, upon such payment by him of said sum of $3,000 within said year; and whereas I hereby agree to and with the said Emil Weber to execute said deed of conveyance, and reconvey all of said real property to him, upon the foregoing consideration." Said agreement further obligated said Rothchild to execute a deed of conveyance upon the payment of $3,000 within one year, conveying the title to all of said real property, "free from all incumbrances placed thereon, or suffered to be placed thereon, by myself or my grantees or assignees to said Weber."

We do not care to recapitulate the facts touching the relations between Weber and his wife for some time prior to the second day of November, 1886, as they are disclosed by this record. It suffices to say that they furnished ample causes for a divorce in favor of the plaintiff, and that these facts appeared to have come to the knowledge of the plaintiff not long prior to that time, and the defendant Weber also became aware about that time that his wife had acquired a knowledge of the facts upon which this suit is founded. The facts and circumstances leave no doubt in the mind of the court that the conveyance to Rothchild was made and designed by Weber to defeat the plaintiff in the recovery of any part of his (Weber's) property, or of alimony in her contemplated suit for a divorce. But it is argued by counsel that, however fraudulent may have been his acts, Rothchild must remain unaffected, unless the evidence proves that he had knowledge of such fraudulent intent, and participated in it. This is undoubtedly true, if Rothchild's acts were in good faith. But here two material facts appear which, under all the circumstances, are of so cogent a character that they seem to call upon him for an explanation; in other words that he should show that he paid a valuable consideration for the property, and that he did it without notice. The first is that he made the contract set up in his...