White v. Savage

• Decision Date: 18 December 1906
• Parties: WHITE v. SAVAGE et al. [*]
• Court: Oregon Supreme Court

87 P. 1040

48 Or. 604

WHITE v. SAVAGE et al. ^[*]

Supreme Court of Oregon

December 18, 1906

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by M.M. White against Lewis Savage and others. From a judgment for plaintiff, defendants appeal. Reversed.

This is a suit to restrain defendant Savage from prosecuting two actions against the plaintiff upon promissory notes, signed by plaintiff and his wife, since deceased, and to compel the defendant Savage to present his notes to the executors of the will of plaintiff's wife for allowance, and for said executors to allow and pay them out of the estate. The amended complaint alleges, in substance, that the defendant Savage is the father of the defendant Zella Fletcher, and H.C. Fletcher is her husband; that Carolina E. Sloper White wife of the plaintiff, died about August 18, 1904, in Marion county, Or., and by her last will appointed the defendants H.C. and Zella Fletcher executor and executrix, respectively of her will, which was thereafter admitted to probate and said executor and executrix duly appointed and qualified thereunder; that defendants George Sloper and Lottie Young are the only children and sole heirs at law of the plaintiff's wife; that plaintiff and said Carolina E Sloper White were married about the month of August, 1901 and were husband and wife at the time of her death; that the plaintiff is also named as a legatee and devisee in her will but has renounced his claim to the provisions of said will, and claims a life estate in all her lands as tenant by curtesy; that for several years preceding her death his wife was an invalid and required great care and attention in nursing, and they were without any considerable means to pay for such expenses, and his wife applied to the defendant Savage for a loan, and Savage from time to time did advance and lend her divers small sums of money, which were wholly used in defraying expenses of nursing and caring for her, and that from time to time, as the sums loaned amounted to the sum of $100, plaintiff's wife executed notes to Savage as an evidence of said indebtedness on her part, and plaintiff signed the notes with her, but only as surety; that on August 22, 1904, after her death, Savage commenced an action in the circuit court of Marion county against the plaintiff on two of said notes for $100 each, and thereafter, on September 6, 1904, commenced another action in the same court against the plaintiff upon the remaining two of said $100 notes, and in each of said actions caused a writ of attachment to be issued, and by virtue thereof attached the plaintiff's estate by curtesy in the lands of his deceased wife, and that Savage has not presented said claims to the executors for allowance, and wrongfully fails to present the same for the purpose of defrauding plaintiff out of his life estate in the lands of his wife; that all the moneys paid by Savage as a consideration for the execution of the four notes, and also a note for $300, dated January 21, 1903, due six months after date, in favor of Savage, and signed by the plaintiff and his wife, and secured by a mortgage upon lands owned by her in Salem, Or., were received wholly by the plaintiff's wife and expended for her care and nursing and medical attendance upon her, and that the plaintiff received no part of the consideration for said notes, and is only a surety upon said notes, and the same is well known to the defendant Savage; that shortly after the death of plaintiff's wife the defendant Savage offered to pay him $100 for a deed of conveyance to him of plaintiff's estate and interest in the lands owned by his wife at the time of her death, but the sum was wholly inadequate, and plaintiff declined to execute such deed, and thereupon Savage commenced the action above referred to, and now the five defendants are engaged in an effort to despoil the plaintiff and obtain his interest in his wife's lands by selling the same upon execution upon the judgments to be obtained in said actions; that said actions have been commenced solely for that purpose, and the plaintiff, aside from his estate in said lands, is wholly insolvent, and that Savage knew when he brought his actions that the debt could be satisfied and the judgment obtained by him only out of the life estate of plaintiff, and he also knew that the estate of plaintiff's wife was well able to pay the same, and that it would pay it upon presentation; that prior to the commencement of this suit plaintiff duly presented his claim and demand to the executor and executrix of said estate, setting forth, among other things, the fact that he was only surety upon said notes, and demanding that said executor and executrix indemnify and save him harmless of and from the amounts due upon said notes, but they have failed and neglected so to indemnify and save him harmless, notwithstanding the fact that the estate of plaintiff's wife is able to pay the same after the payment of all the prior claims against said estate; that plaintiff has no plain, speedy, or adequate remedy at law, and that the plaintiff has offered to defendant Savage payment in full upon all said notes and mortgage, and requested Savage to assign same to plaintiff, but defendant has...