103 P. 72 | Or. | 1909
Lead Opinion
delivered the opinion of the court.
There is much disagreement among the authorities as to whether or not a complete performance of an agreement upon one side at the time of its making, the performance of which by the other party is not to take place within a year, will take the case out of the statute. It is said that the adjudicated cases are incapable of reconciliation on principle, but that the decided preponderance of authority is in favor of the validity of a parol contract which has been fully performed upon one side at or near the time of its making, although the execution thereof by the other party is deferred for a longer period than one year: Smith, Law of Fraud, § 352. And especially is this the case where the stipulation sought to be enforced related solely to the payment of a money consideration. In such cases it is a mere point of form in bringing the action; the plaintiff’s right to recover on the indebitatus assumpsit being clear: Browne, Statute of Frauds (5 ed.), § 290; Pierce v. Paine’s Estate; 28 Vt. 34; Emery v. Smith, 46 N. H. 151; Durfee v. O’Brien, 16
The motion for a directed verdict involves the same theory of the defense, and it was therefore properly denied.
When a party seeks to have an attachment discharged by a traverse of the facts alleged in plaintiff’s affidavit, it is well' settled that the traversing affidavit or plea must deny every statutory ground alleged in the procuring affidavit in as direct and explicit terms as if it were an answer to a complaint, and must be tested by the same rules: Watson v. Loewenberg, 34 Or. 323 (56 Pac. 289). The plaintiff’s position, as set forth in his affidavit, is that the contract upon which he sues, whether express or implied, is for the direct payment of money, and that it is not secured by a mortgage, although it is confessed that a note and mortgage in form upon real property were given as collateral security; but it is averred that the giving of this note and mortgage, and procuring him to accept them, was a fraud, that neither the defendant nor his son had any title to the land dr interest therein that could be mortgaged, and that the son, who executed the note and mortgage, was at that time, and is now, a mental imbecile to such an extent that he was and is incompetent to contract. None of these averments are attempted to be met and refuted expressly by the defendant, except the one asserting the lack of title, and this only by the affidavit of the alleged incompetent, William N. Wade, who therein claims to own the land in his own right, without limitation as to the quantum of his interest. If any evidentiary value at all can be given to this affidavit, it can go no further than to prove that whatever interest he had in the land he held in his own right, and not as trustee for his father; but we are of the opinion that, because of Wade’s lack of mentality, which is conclusively established, this affidavit should be given little or no Weight. *
Now, if William N. Wade ever had any title or interest in this land sufficient to be mortgaged, the record shows he held it in his own right, and not as trustee. It appears to have been purchased at private sale from the United States government as a part of the Umatilla Reservation under Act Cong. March 3, 1885, c. 319 (23 Stat. 340), and Act. Cong. July 1, 1902, c. 1380 (32 Stat. 730), the southeast quarter by Charles Sevey, a brother-in-law, and lots 11, 12, 19, and 20, by Rose Carroll, a sister of William. This is shown by the duplicate receipts under date of March 12, 1903, and the second and third payments. On April 4, 1903, a few days before the execution of the note and mortgage in question, each of these purchasers, for the expressed consideration of $500, conveyed the land to William N. Wade by bargain and sale deeds, with a warranty against incumbrances and to defend the same against the lawful claims and demands of all persons. From the affidavit of F. C. Bramwell, acting register of the United States Land Office at La Grande, it appears that Sevey’s entry, as the result of a contest, was held for cancellation April 8, 1908, and Rose Carroll’s entry was finally canceled and the land resold March 3, 1907, to Frederick Shoemaker. There is no proof that William N. Wade took any other title than that disclosed by these deeds. It is true that plaintiff
In Farley v. Parker, 6 Or. 105 (25 Am. Rep. 504), this court has held that the deed of a person non eom/pos mentis is void. This conclusion is supported by a respectable line of authority, including the cases of Dexter v. Hall, 15 Wall. (U. S.) 20 (21 L. Ed. 73), and Van Deusen v. Sweet, 51 N. Y. 378. There are many cases, however, which treat the deeds and contracts of infants and persons non compos mentis as merely voidable, and not as absolutely void: Key’s Lessee v. Davis, 1 Md. 32; Burnham v. Kidwell, 113 Ill. 425; Evans v. Horan, 52 Md. 602; Allis v. Billings, 6 Mete. (Mass.) 419 (39 Am. Dec. 744) ; Riggan v. Green, 80 N. C. 236 (30 Am. Rep. 77). But conveyances without consideration have been held absolutely void: Clerk v. Clerk, 2 Vern. 412; Elliot v. Ince, 7 De G., M. & G. 475; Roddy v. Williams, 3 Jones & L. 1. But even though this contract be considered as merely voidable, and not void, still it could be avoided at the election of the incompetent if he should recover, or by his guardian if one should be appointed, or by his legal representative, or his heirs. It is only contracts based upon an adequate consideration of which the incompetent has had the benefit, and made by the other contracting party in good faith, without fraud or undue influence, and without knowledge of the insanity,’ or reason to suspect it, that will be upheld against the incompetent: 16 Am. & Eng. Enc. Law (2 ed.) 625. And this contract is not of that character.
Under these circumstances, it cannot be said that plaintiff had security for his debt, and there was no error in refusing to discharge the attachment.
The judgment is affirmed. Affirmed.
Dissenting Opinion
delivered the following dissenting opinion:
I am unable to concur with that part of the opinion holding that, under the circumstances presented by the record, an attachment will lie. I regard it as a well-established rule that, unless the statute expressly provides for a liberal construction, all enactments relative to attachments must be strictly construed, and may not be extended by implication or interpretation. Our statute makes no provision for an exception to this rule, with reference to which Mr. Justice Strahan, in Case v. Noyes, 16 Or. 329, 333 (19 Pac. 104, 106), referring to provisions of the code upon the question, remarks: “The court has no power to enlarge or extend them beyond the letter of the statute.” Similar enactments were under
The conditions under which an attachment may be made a lien upon the property of the debtor are clearly circumscribed in Sections 296, 297, B. & C. Comp, the enumeration of which provisions with reference thereto, under all rules of statutory construction, excludes all others not there specified. Plaintiff has not brought himself within any of the requirements indicated in those sections. The note and mortgage securing it accepted by him as security for the loan are regular in form, and properly executed, and the record does not disclose that they have been “rendered nugatory by the act of the
Unless it appears that the mortgagor at the time of the execution of the instruments was adjudged insane, or otherwise incompetent, and was at that time under such disability, then I think, under the most favorable view to plaintiff, the instruments executed by him are voidable only, and are in full force and effect until annulled in some direct proceeding instituted in the proper forum and by the proper party for that purpose: Coburn v. Raymond, 76 Conn. 484 (57 Atl. 116: 100 Am. St. Rep. 1000) ; Eaton v. Eaton, 37 N. J. Law, 108 (18 Am. Rep. 716) ; Blinn v. Schwarz, 177 N. Y. 252 (69 N. E. 542: 101 Am. St. Rep. 806) ; French L. Co. v. Theriault, 107 Wis. 627 (83 N. W. 927: 51 L. R. A. 910: 81 Am. St. Rep. 856) ; Riggan v. Green, 80 N. C. 236 (30 Am. Rep. 77) ; Carrier v. Sears, 4 Allen (Mass.) 336 (81 Am. Dec. 707) ; Ashcraft v. De Armond, 44 Iowa 229; Swartwood v. Chance, 131 Iowa 714 (109 N. W. 297).
True, it is disclosed that Wade was at one time adjudged insane and committed to an asylum; but it also appears that he was subsequently discharged, thereby overcoming any presumption against him by reason of such commitment, and, until otherwise declared
So far as appears from the record, no steps have been taken to annul the instruments held as collateral; nor does it appear that the alleged imbecile, or any one appearing in his behalf by arid proceeding, directly, indirectly, or otherwise, in any manner disputes their sufficiency, or that the title to the land mortgaged is in any way brought in question, except by the method here under consideration.
Being of the opinion that the trial court was in error in not dissolving the attachment, I dissent from the conclusion announced by the majority on this point.