69 P. 43 | Or. | 1902
after stating the facts in the foregoing terms, delivered the opinion of the court.
It is contended by defendant’s counsel that Case was solvent when he executed the deed to the defendant, and that the court erred in setting it aside. The testimony discloses that I. W. Case for about ten years prior to July 29,1893, had been the sole proprietor of a bank in the City of Astoria, and, by the careful management of his business, had worn the confidence of his patrons, and was ranked high in financial circles. About 1889, however, the value of real property in and surrounding that city began to advance in consequence of a general belief that a railroad would soon be built thereto, thus affording better facilities for transporting to an Eastern market the lumber manufactured and the vast quantities of salmon annually canned there, and for bringing wheat, flour, wool, hops, and other inland products to the city, to be carried in ships from its wharves to foreign ports. This appreciation of land caused speculation therein, and induced Case to join others in purchasing tracts which they caused to be surveyed and platted for the purpose of selling the lots and blocks laid out thereon when their hopes of railway communication and the advantages resulting therefrom would be fully realized, thus rendering their investments profitable. Hiram Brown in 1889, being the owner of 60 acres of unimproved land, situated about a mile south of the business center of the city, and having about 3,000 feet of water front, sold and conveyed the same to I. W. Case, J. H. Gray, and two others for the sum of $60,000, each taking an equal interest therein, and the land so purchased was platted as ‘‘ Case’s Astoria. ’’ Gray not having paid his part of the purchase price, Case, for his accommodation, gave Brown his promissory note, as hereinbefore stated, taking Gray’s note, January 2,1893,for the sum of $12,942.64, secured by a mortgage of his interest in Case’s Astoria and other property. A transcript of Case’s ledger, offered in evidence, shows that his assets, March 28, 1893, were valued by him at $346,377.07, and his liabilities stated to be
The assignee, being desirous of securing for the creditors the best possible prices for the property committed to his charge, delayed the sales thereof until a railroad was constructed to Astoria from Goble, connecting with the Northern Pacific Railway from Tacoma to Portland, hoping thereby to be able to realize a sufficient sum to discharge the liabilities of the estate; but upon the sale of such interest in the lots and blocks in Case’s Astoria he realized only the sum of $1,227.95, thus failing to secure the appraised value of the entire property by $18,264.22, and entailing a diminution of the “excess of assets,” as disclosed by said inventory, of $12,492.64. Gray’s mortgage to Case having been foreclosed, a few of the lots in Case’s Astoria were sold under the decree September 5, 1895, for the sum of $485; but the assignee, not receiving such offers for the remaining real property as he considered it worth, bid it in for the estate at the sum of $10,360, and thereafter he and Gray and his wife conveyed the property so pur
A careful examination of the testimony leads us to believe, as will hereinafter appear, that defendant paid-a valuable consideration for the property, and secured a deed therefor without notice of any intention upon Case’s part to hinder, delay, or defraud his creditors; but, inasmuch as the consideration may have been somewhat inadequate, we have deemed it proper to consider the question of Case’s financial condition) and think, if the lots in Case’s Astoria could have been sold in the ordinary course of business (Bank v. Cook, 95 U. S. 342), and within a reasonable time after March 28, 1893, a sum equal to his appraisement of that property could have been secured, and that he had sufficient assets, which, if converted into money in the manner indicated, would have paid all his debts.
The defendant’s testimony is not contradicted in any manner, except that she says she never told her sons that her brother owed her $2,000, saying: “I never told them anything about it. I didn’t know anything about him, no more than I did a perfect stranger.” Her son testified that in 1883 he first heard that his uncle owed his mother $2,000, and in answer to the question, “Who told you at that time?” he answered, “My mother. She was visiting me in Nebraska in the fall of ’83, and told me of the visit of her brother in Des Moines, Iowa, in ’81, when he first told her he would pay her this sum.” The defendant was seventy-two years old when she appeared as a witness, and, while this contradiction in her testimony is not very material, we think it quite probable that, in saying she had not told her sons of the money which her brother owed her, she meant to be understood that she did not inform them thereof in 1881, when she met her brother at Des Moines, Iowa. Her testimony is consistent, reasonable, and probable. Her father, being displeased with her husband, never made any donation to her until a short time before his death, when he sought to make some reparation for his neglect, and to place her on an equality with his other children, by pro
Frank Patton, who was surety on Case’s bond as treasurer of the Water Commission of Astoria, having seen a notice in the newspaper that' Case had executed the deed in question, inquired of him what he meant by conveying away his property, and was informed that he had sold it for $11,000 cash, and put the money into his business. This statement was not made in the defendant’s presence, and hence she is not bound thereby. Besides, Case may have considered that he was indebted to his sister in that sum.
Having reached the conclusion that Case was solvent at the time he executed the deed to the defendant, and that she paid a valuable consideration therefor, it follows that the decree is reversed, and the complaint dismissed. Reversed.