Blackabee v. Seaweard, 231 P. 146

231 P. 146 | Or. | 1924

COSHOW, J.

Transfers of property to near relatives is looked upon with suspicion, and the burden of showing a transaction in good faith and free from fraud is upon the grantees: Clark v. Pilomath College, 99 Or. 366, 378 (193 Pac. 470, 195 Pac. 822); Stubling v. Wilson, 50 Or. 282 (90 Pac. 11, 92 Pac. 810), and cases therein cited.

The questions involved in this suit are principally questions of fact. The facts, that the grantees in the two deeds were wife and son, respectively, of the grantor; that the deeds were not placed of record more than two and one-half years after they were executed and delivered; that the grantor remained in apparent possession and exercised control or ownership over the property from the time the deeds were executed and delivered and until they were recorded; that the land described in the two deeds was assessed to the grantor and he paid the taxes; that he paid the assessment for the use of water for irrigating the premises retaining ownership of the water right in his own name; and that he rendered' to the Ontario National Bank, of which the plaintiff is president, statements of his property, including the land described in said deeds between the dates the deeds were executed and delivered and the time they were recorded, are all badges of fraud: 20 Cyc. 441, and following; 27 C. J. 483, and following; Marks v. Crow, 14 Or. 382 (13 Pac. 55); Wright v. Craig, 40 Or. 191 [86 Pac. 807); Clarke v. Philomath College, above; Bump on Fraudulent Conveyances (2 ed.), 31, Chap. IV.

The appellants attempt to show that the said conveyances were not fraudulent, but were made for a valuable consideration. One cannot read the testimony in this suit without being convinced that the effect of the two conveyances is to hinder and delay, if not absolutely defeat, the collection of the indebtedness owing by the grantor at the time the deeds were made and delivered. The evidence adduced by the defendants, as to what was a valuable consideration, is very unsatisfactory. It is indefinite, uncertain and vague. The testimony of the defendant Elizabeth A. Seaweard is to the effect that when she was married to the said J. H. Seaweard she had more property than he had and that that property has always been held and managed in the name of her husband. The evidence, however, does not disclose the value of the property and inasmuch, as they were married more than 40 years prior to the date of the execution of the deeds, and the further fact, that the title to the property was in the defendant J. H. Seaweard and was the basis of the credit extended to him, prevents her testimony from showing a valuable consideration sufficient to overcome the inference of fraud deduced from the circumstances. There is no evidence that a monetary 'consideration passed at the time of the execution and delivery of the deeds. The situation between the defendant J. H. Seaweard and John E. Seaweard is similar. The testimony of both of the last-named defendants is not sufficient to establish a valuable consideration. No specific amount of the property owned by the defendant John E. Seaweard is named; no account was kept between him and his father, and no settlement was made. The testimony of John E. Seaweard is to the effect that he had property amounting to several-thousand dollars. He had saved up from time to time and turned it over to his dad, and when he needed or wanted money, he drew on dad. It is not unreasonable to conclude from his evidence that he drew as much or more from his dad than he delivered to him.

The burden of proof was upon the defendants to show a valuable consideration. In this, the defendants have failed: 27 C. J. 500, § 164, and p. 501. In order to have a deed set aside as fraudulent, it is not necessary that the secret intent of the parties thereto was to defraud their creditors. It is sufficient if that is the effect of the transfer where such transfer is voluntary. Nor does the belief of the parties to the transfer that the grantor retains sufficient property to satisfy all his creditors validate a transfer where the transfer is not supported by a valuable consideration, if, in fact, the effect of the transfer is to defraud, delay or hinder the creditor in the collection of his debt: 27 C. J. 504, § 171, and following on p. 506.

The testimony of the defendants and two of his witnesses indicates very clearly that the transfers were made in anticipation of death. The transfers are very closely related to a testamentary gift, which would not take effect until after the death of the grantor. This evidence is supported by the delay in recording the deeds, the grantor having recovered at the time the deeds were recorded. The debt of the grantor had largely increased and his property decreased. The effect of the transfers, without question, would delay, if not defeat, the plaintiff in the collection of his judgment.

The appellants claim that the decree is too broad in this, that it deprives the defendant Elizabeth A. Seaweard of her interest in the S.% of N.% of NW.% of NE.1/4 of said Section 10, Twp. 18 S., R. 47 E., W. M. This 10-acre tract was conveyed to the defendants J. H. Seaweard and Elizabeth A. Seaweard as husband and wife. The decree does not deprive her of the interest conveyed to her by that deed. The decree reads that she be

“barred from any and all right, title, claim or interest in or to the said real property or any part thereof, save and except the interest she had in the” 10-acre tract “prior to the execution of said deed.”

The decree, therefore, does not deprive her of the interest that was conveyed by the deed to herself and husband and which she owned therein prior to the execution and delivery of the deed by the said J. H. Seaweard to her.

The demurrer to the complaint was properly overruled. Finding no error, the decree is affirmed.

Affirmed.