Barr v. Minto

133 P. 639 | Or. | 1913

Opinion by

Mr. Chief Justice McBride.

1. The first question presented is as to the sufficiency of the pleadings. It is contended by the plaintiff that, while in a creditor’s bill to set aside a fraudulent conveyance it is necessary for the grantee under such conveyance to plead and prove that he is an innocent purchaser for a valuable consideration and without notice of any fraudulent intent on the part of his grantor, in this proceeding a different rule prevails, and that the party claiming that a conveyance is fraudulent as to creditors must plead and prove the fraud. We are unable to perceive any difference in the method of pleading nor in the quantum of proof required in either case. In the case at bar plaintiff calls defendants into court, alleging that he is the owner of the property described, 'and requiring defendants to set forth any claim or lien that they may have against the property. The defendants by way of answer and defense say to the plaintiff: “It is true that you have a deed to the property, but on account of equitable considerations you are not the owner. The conveyance to you was without consideration and to avoid the payment of my claim, and was taken by you with knowledge of such fraudulent intent, and is therefore void.” Herein are all the elements of a creditor’s hill, and thereafter the case should have proceeded as though an original bill had been filed by defendants as plaintiffs to set aside the conveyance and subject the property to execution under the judgment.

It is true, as suggested by plaintiff’s counsel, that a defendant in a suit of this character must plead and prove fraud on the part of the parties to the conveyance which they attack, but the same is true as to any party attacking a conveyance for fraud in any proceeding. A creditor attacking a conveyance for fraud must not only plead, but prove, the fraud. The same rules of pleading are required of a defendant who sets up fraud in a conveyance when he is sued by the grantee under such conveyance to quiet title as would be required of him were he a plaintiff in a creditor’s bill; and, having set up the facts thus necessary to be alleged, it is incumbent upon the plaintiff by way of reply to plead the same facts showing good faith, want of notice, and payment of consideration, as he would have been required to have shown had his conveyance been attacked by an original suit instead of by an answer.

2. In this case it is claimed that the answer is defective because it does not allege that Herman W. Barr was the actual owner of the property when it was attached. To this may be answered that both parties claim under’Herman W. Barr, that the pleadings show that his interest in the property was attached, and that by implication at least he was the owner, as it appears from the complaint that he had no other property, except the lands mentioned, out of which the lumber company’s demands could be realized. While this cannot be commended as an example of definite pleading, we think, in the absence of a motion to make more definite and certain, it is sufficient. When we say that a person owns no property except Whiteacre, we, by implication, assert that he owns Whiteacre.

3. Upon the merits we think that the defendant has shown snch circumstances as will warrant the court in finding that the conveyance was fraudulent. The reasons may be briefly stated as follows: (1) Herman W. Barr was insolvent and threatened with an immediate lawsuit. (2) The alleged purchase was made immediately after the threat of legal proceedings, without any intended negotiations, and without the purchaser ever having seen or examined the property. (3) The alleged purchaser never looked into the title nor saw the deed until after it was recorded, but left to the grantor the whole matter of preparing it and putting it upon record. (4) The alleged purchaser knew that his grantor was in embarrassed circumstances at the time the alleged trade was consummated. (5) The conveyance was between near relatives, who would naturally be expected to know something of each other’s circumstances and financial condition; and this, coupled with the haste with which the alleged trade was consummated and the circumstances immediately preceding it, renders the whole transaction suspicious.

The testimony of Herman W. Barr is very unsatisfactory. He does not show a disposition to disclose all the facts relating to the transaction, but to avoid disclosing them. It is shown that the deed was originally written with his brother in law as grantee, but this name was erased and his brother’s name substituted. He claims that this was done on account of some negotiations had previously with the brother in law in regard to a sale, but that person is not produced to corroborate this statement. When asked what he -did with the $800 he received, his answers were vague and unsatisfactory, culminating in a flat refusal to answer further. The plaintiff’s memory seems equally deficient in many particulars. Taking the testimony as a whole, we are satisfied that the alleged conveyance of the land in question to plaintiff was not a bona fide sale, but was a device to defeat the Falls City Lumber Company in the collection of its claim.

The decree of the Circuit Court will be reversed and one entered here in accordance with this opinion.

Reversed: Decree Rendered.

Mr. Justice Moore, Mr. Justice Burnett and Mr. Justice Ramsey concur.