139 P. 854 | Or. | 1914
delivered tbe opinion of tbe court.
Tbe pleadings in this case are too prolix to be set forth in this opinion. Tbe real property in dispute is situated in Douglas and Lane counties. Tbe property in Douglas County consists of several hundred acres of land, and that in Lane County consists of lots in Eugene. Tbe property is particularly described in tbe complaint, and need not be described in this opinion.
Tbe following is a brief summary of tbe main points of tbe pleadings:
“This is a suit brought by H. Gr. Crow against bis brother E. J. Crow and bis wife, Olive Crow, in tbe Circuit Court for Douglas County. Tbe plaintiff died before tbe case came on for trial and Albert Abraham was' substituted as party plaintiff. Tbe defendant E. J. Crow died after this appeal was taken and bis widow, Olive Crow, has been substituted as party defendant.
“The plaintiff, by bis amended complaint filed June 9, 1909, alleges: That being indebted to Marks & Co., be made, executed, and delivered bis note, on January 12, 1878, in favor of tbe said firm, for the sum of $412.07 and mortgaged all of bis real property, describing it, to tbe firm to secure tbe payment of this note. That tbe defendant E. J. Crow purchased tbe said note and mortgage and became tbe owner thereof on October 25, 1880. That on tbe 27th day of October, 1880, tbe plaintiff herein confessed judgment in tbe Circuit Court for Douglas County in favor of tbe defendant herein, for tbe sum of $632.57, tbe same being tbe amount then due on tbe note and mortgage given to Marks & Co. That tbe plaintiff herein bad*537 some trouble with his wife. That in order to discourage litigation on her part, he made, executed, and delivered to this defendant bis promissory note for the sum of $6,500, and mortgaged all of his real property to this defendant to. secure the payment of said promissory note, and he alleges that it was executed on April 22, 1880, and further that there was no consideration for the said note and mortgage, except a desire to so encumber his property in order to discourage litigation with his wife with whom he had trouble. October 28, 1880, the plaintiff confessed judgment in said court, in favor, of the defendant, for the sum of $7,706.80, this being the amount then due, with interest and costs, on the $6,500 note, dated October 22, 1879. On February 26, 1883, the plaintiff made, executed, and delivered to the defendant his warranty deed, conveying his real property above referred to. It is alleged that there was no consideration for such deed, but that it was made to more effectually avoid any financial difficulty with his said wife. That it was verbally understood between the parties that the defendant E. J. Crow should hold the title, so conveyed, in trust. And that when the defendant had been repaid what the plaintiff owed that E. J. Crow should reconvey the premises. The plaintiff became further indebted to the above-mentioned firm of Marks & Co., and that firm did on the 19th day of January, 1884, procure a judgment against the plaintiff herein, in the said court, for the sum of $623.96. That he had no property out of which this judgment could be made or satisfied, and that the said firm brought a suit in the said court to set aside the transfer of the property from the plaintiff to the defendant and asked for an order selling the said property to satisfy their said judgment. That in said suit the plaintiff and the defendant in this suit were made defendant. That after a trial of the issues in that suit it was held by the court that the transfer from the plaintiff to the defendant was void as to the plaintiff in that suit, to wit, Marks & Co., and the court ordered the premises sold to satisfy the Marks & Co. judgment taken on*538 January 19, 1884. This suit was appealed by the defendants in that case to the Supreme Court. That upon such appeal the case was tried and a decree rendered and by which the decree of the Circuit Court was substantially affirmed. That it was ordered that the premises should be sold and that from the proceeds should be paid: First, the amount of the costs of sale and expense of the suit; second, the amount of the judgment in favor of E. J. Crow, taken on October 27, 1880, on the first Marks & Co. note and mortgage which he had bought, and at the time of the decree amounting to $1,035.30; third, in payment of the amount of the Marks & Co. judgment of January 19, 1884, and amounting at the time of the decree to $747.29; and, fourth, that the remainder, if any, be paid over to the defendant E. J. Crow. That after the mandate was received in the Circuit Court an execution was issued and the sheriff for said county sold said real property on April 4, 1887. That the defendant E. J. Crow became the purchaser at the said sheriff’s sale. That his bid was $4,000. That there was no redemption from the sale. And that a sheriff’s deed was issued, by the order of the said court, confirming the said sale. That plaintiff herein alleges that, it was verbally agreed between the parties that E. J. Crow should bid in the said property and hold the same in trust. That he should have the right to convey so much of it as might be necessary to reimburse him for any sums due and owing to him. That he paid the sum of $1,236.11 on account of the satisfaction of the Marks & Go. suit and judgment, including costs and disbursements, but that no other part of the said sum of $4,000 was in fact paid. It was claimed in the complaint that the defendant E. J. Crow had secured large sums of money from the estate of the father and of the mother of these parties, belonging rightfully to the plaintiff; that the plaintiff had conveyed an undivided interest in a lot in Eugene, Oregon, to the defendant in trust. The court specifically finds that the defendant did not get any money from said estate belonging to the plaintiff and that the conveyance of the land at*539 Eugene was an absolute sale; and no further mention will be made of these matters in this case. It is alleged that the defendant sold a portion of the land, referred to as the ‘Looking Glass Property,’ which was included in the mortgages, the deed of February 26, 1883, and also in the sheriff’s sale of April 4, 1887, and that he received therefor the sum of $2,000. That the plaintiff paid large sums to the defendant in wheat, oats, cattle, and sheep, prior to the said sale on execution, and that the defendant refuses to account for the property so received. That the plaintiff refuses to reconvey the said premises and denies that there ever was or had been any trust agreement and claims that the confession of judgment, deeds, and sale on execution was absolute and without reservation. The plaintiff prayed for an accounting; that he have a judgment in $3,000; that the sheriff’s deed, above referred to, be declared a trust deed; and that it be declared that the defendant E. J. Crow was holding the unsold lands in trust for the use and benefit of the plaintiff.
“The defendant by his answer entered a specific denial as to the material allegations of the complaint, and by affirmative answer sets up the taking and making of the deed of February 26, 1883, and that the same was for a valuable consideration. The answer in the suit brought by Marks & Co. against H. G. Crow and E. J. Crow, above referred to, is set out in full in the answer in this case. H. G. Crow was the moving party in such suit; that he verified and filed the answer and when the case was called for trial he was sworn as a witness and testified under oath as to the various transactions between the brothers; in that suit he positively identified the several judgments by confession and stated that tlie amounts were true and correct. That the deed of February 26, 1883, was absolute and without reservation, and that he surrendered possession of the premises to E. J. Crow on that date. That after that time when he was on the land he was there by permission only. The defendant alleges that the plaintiff is estopped, by reason of the said proceed*540 ings, suits, and judgments, to which he was a party, by the execution of his own warranty deed, by the issuance of a sheriff’s deed after confirmation of the sale in the case of Marks & Co., in which sale and confirmation he acquiesced, from disputing or from denying the title of this defendant to the premises from which he, the plaintiff, solemnly asserted he had sold and surrendered to the defendant. That the defendant has been and is the owner in fee simple of all of the properties conveyed. That the possession of a portion of the said premises by the plaintiff was by the permission of the defendant and in order to enable the plaintiff to have a home. That the claim of the plaintiff set up herein is res adjudicate/, between these parties; that it is stale, and as to a portion that it is barred by the statute of limitations.
“The reply admits the filing and verification of the answer in the ‘Marks’ case, and admits that the plaintiff herein, as a defendant in that suit, did testify as alleged by the defendant herein, but claims now that when he did so testify that it was false, and that it was not done so voluntarily, but that this defendant induced him to swear falsely in that case.
“This suit was heard on depositions taken and on testimony taken in open court, and a decision and decree was rendered and filed herein on the 27th day of December, 1912. The court below by its said decision holds that the heirs at law and the estate of H. G. Crow own the land, describing it, with certain exceptions recited in the decree. That the ownership of the said land by said estate and heirs is subject to a lien held by E. J. Crow, who has the record title, but whose real title is that of a trustee. That such lien is in whatever sum may be owing from H. Gr. Crow to E.. J. Crow. That an accounting cannot be had as to what amount is due on the testimony taken in the case. That an accounting should be had for the purpose of determining the sum due E. J. Crow, and'E. J. Crow was required to file his claim within 20 days from the date of the decree, for such accounting. A decree was rendered on this decision, and from this decision and decree the defendants appeal to this court.”
Ida May Crow, the plaintiff’s wife, began a suit against him in the Circuit Court of Douglas County for divorce and alimony on April 10,1880, and process was served on him in said suit on April 19, 1880. In her complaint in said suit, his wife accused him of cruel and inhuman treatment of her, and demanded a divorce and alimony in the sum of $500 a year and for general relief. The record shows that he was married to his said wife on October 25, 1879 (three days after the date of said promissory note and said mortgage given to secure it).. Said suit for divorce was pending until May 9, 1881, and on that day a decree was rendered by said Circuit Court granting to said Ida May Crow a divorce from H. G~. Crow, but not granting her any alimony, her demand for alimony having been in the meantime stricken out by consent.
On January 12, 1878, the plaintiff made and delivered to S. Marks & Co. his promissory note for
The plaintiff alleges that the note and mortgage to the defendant for $6,500, made as stated supra, were executed without any consideration, and that he did not at that time owe the defendant anything, and he asserts, in his complaint and in his evidence, that he made said note and mortgage fiecause of the difficulty that he was having with his wife, “to prevent and discourage ’ ’ financial difficulties with her. In his evidence he says: “I married another woman. * * She stayed two weeks with me and she ran off like she was crazy, and the next thing I knew was a great lawsuit and a large howl. I read it * * and I knew it was false from beginning to end, and it occurred to me that I had better talk to an attorney. His name was J. H. Kennedy. I handed it to him, and says I, ‘Kennedy, what do you think of that? ’ Well, he read it and turned pale, and he turned kind of blue like, and he says, ‘Henry, there is nothing to it but a speculation, and there will have to be something done’; and I says, ‘I don’t know what to do.’ I was so green. I knew nothing about law, and I says to him, ‘What can be done or what will we do?’ and he says, ‘I would put everything I got in trust to some person’; and says I, ‘You attend to it and put it in trust, and all my honest debts is to come out, whatever they are. I did not put it in trust against any honest debts,’ says I. ‘I would never do that,’ says I. * * ‘I don’t think that there is anything wrong for to give away from the gross robbery from that woman.’ I did (make the mortgage). He (Kennedy) fixed up the papers. They fixed up the papers and I signed them. Of
The plaintiff asserts in his complaint that said mortgage was made to “discourage and prevent” financial difficulty with his wife, and, in his evidence, he swears that the note and mortgage were made to cover up and to hold his property. He testified in this suit that there was no consideration for their execution.
The defendant paid S. Marks & Co. the amount due them on said note and mortgage made to them by the plaintiff, as stated supra, and took an assignment thereof to himself. On October 27, 1880, the defendant herein commenced a suit in the Circuit Court of Douglas County against the plaintiff herein to foreclose the mortgage made by the plaintiff herein' to S. Marks & Co., and by them assigned to this defendant, and process was served on the plaintiff, and the plaintiff herein appeared in said foreclosure suit and filed a written stipulation therein, confessing judgment for the sum of $421.07 principal, and $150 interest, and $54.50 as attorneys’ fees, and for costs and disbursements and for a decree of foreclosure therein, and agreeing that a decree for said sums and for a foreclosure of said mortgage should be entered by said court in favor of E. J. Crow, and said court entered a decree in accordance with said stipulation.
Under Section 756, L. O. L., a decree of this hind is conclusive between-the parties thereto and their representatives and successors in interest in respect to the matter directly determined by it. The matter directly determined in that suit was that H. G. Crow was indebteded to E. J. Crow in the said principal sum of $6,500, and in the sum of $780 as interest, and in the sum of $426.80 as attorneys’ fees, and that he was entitled to a decree for said sums and for the foreclosure of said mortgage and the sale of said real property. Those matters were alleged in the plaintiff’s complaint in said suit and they were directly determined by said decree.
In Homer v. Fish, 18 Mass. (1 Pick) 439 (11 Am. Dec. 218), the court says:
*545 “It is certainly a principle a'dmitted by all the courts in the abstract, that a matter of controversy wbicb bas been inquired into and settled by a court having jurisdiction of the subject cannot be drawn into question again, in another suit between the same parties, for the purpose of defeating or avoiding the effects of a judgment of the court to which it has been submitted.”
In Bateman v. Willoe, 1 Sch. & Lef. 204, Lord Redesdale says, inter alia:
“It is not sufficient to show that injustice has been done, but that it has been done under circumstances which authorize the court to interfere; because, if a matter has already been investigated in a court of justice, according to common and ordinary rules of investigation, a court of equity cannot take on itself to enter into it .again. Rules are established, some by the legislature, some by the courts, for the purpose of putting an end to litigation, and it is more important that an end be put to litigation than that justice should be done in every case.”
In 2 Black, Judgments (2 ed.), Section 500, the author says:
“That the solemn and deliberate sentence of the law, pronounced by its appointed organs, upon a disputed fact or state of facts, should be regarded as a final and conclusive determination of the question litigated, and should forever set the controversy at rest, is a rule common to all systems of jurisprudence.”
In Garwood v. Garwood, 29 Cal. 514, the court says:
“The judgment of a court having jurisdiction directly upon the point in controversy is, as a plea in bar, and as evidence, complete and conclusive between the same parties and their privies. * * A fact or matter in issue is that upon which the plaintiff proceeds by his action, and which the defendant controverts in his pleading.”
In Allen v. Norton, 6 Or. 344, the court says:
“It is claimed that this, being a judgment by confession under' a particular statute (it), has not the same presumption in its favor as one rendered by the same court in an action pending in court in the regular course of business. So far as this matter is concerned, under our Code, all proceedings are, to a great extent, regulated by statute, and we think great uncertainty would result from attempting to establish different rules in determining the effect of different classes of judgments rendered in the same court, and we think a judgment by confession must be determined by the record of the judgment, and the judgment sale, and that no inquiry can be had into the consideration of the instrument on which it was founded; for the parties by agreeing to the judgment, have waived all right to impeach the consideration of that instrument on which it was founded.”
1 Black, Judgments, Section 78, says:
“In contemplation of law, a judgment on a warrant of attorney, is as much an act of the court as if it were formally pronounced on nil dicit or a cognovit, and until it is reversed or set aside, it has all the qualities and effects of a judgment on a verdict. A judgment upon confession is therefore just as conclusive between the parties and their privies, of the facts and points necessarily involved in and determined by it, and as final a bar to the maintenance of another suit for the same demand, as any other judgment.”
E. J. Crow testified that H. G. Crow owed him $6,500 for which said note and mortgage were given,
For the reasons stated supra, we find that, at the date of said promissory note and mortgage, the plaintiff did owe the defendant said sum of $7,706.80, and that said decree for $7,706.80 based thereon, was a valid decree, and that it has not been impeached. As the plaintiff does not claim to have paid more than a small portion of said decree, the holding that said decree for said amount was valid and conclusive evidence of the existence of said debt, practically determines this case in favor of the defendant, as the final determination is controlled by that fact.
On February 26, 1883, the plaintiff conveyed all of the property in dispute except the Eugene property to the defendant for the expressed consideration of $4,000. The evidence shows that the plaintiff had made some payments on the amount that he owed the defendant on the said decrees, and the defendant made some deductions from the amount, and took the said deed to the said real property in payment of the balance of the debt that the plaintiff owed him on the two decrees. The conveyance was an ordinary warranty deed without conditions. The plaintiff became again indebted to S. Marks & Co. in the sum of $623.96, and said firm obtained a judgment against him in the Circuit Court of Douglas County for that amount, and, not being able to find anything belonging to the plaintiff out of which to make said judgment, said firm began a creditor’s suit against H. Gr. Crow and E. J. Crow to set aside the deed of conveyance made
In 23 Cyc. 1279, the author says :
“Although a judgment is conclusive upon all the parties to the action, so that no one can allege anything contrary to it merely because his coplaintiff or codefendant is not joined with him in the second suit, yet the estoppel is raised only between those who were adverse parties in the former suit, so that the judgment therein settles nothing as to the relative rights or liabilities of the coplaintiffs or codefendants inter sese, unless their conflicting or hostile claims were brought into issue by cross-petitions or separate and adverse answers and were thereupon actually litigated and adjudicated.”
In Ostrander v. Hart, 130 N. Y. 413 (29 N. E. 745), the court says:
“A judgment against a plaintiff in favor of a defendant determines nothing between the latter and a codefendant, because, although both are parties to the action, they are not ‘adverse parties’ as that phrase is applied to the subject of former adjudication.”
In volume 2 of his work on Judgments (2 ed.), Section 599, Mr. Black says:
*552 “As a general rule, parties to a judgment are not bound by it in a subsequent controversy betw.een themselves, unless they were adversary parties in the original action. That is to say, a judgment for or against two or more joint parties ordinarily determines nothing as to their respective rights or liabilities as against each other in their own subsequent controversy.”
In volume 1 of his wort on Judgments (4 ed.), Section 158, Mr. Freeman says:
“Parties to a judgment are not bound by it, in a subsequent controversy between each other, unless they were adversary parties in the original action. • If A recovers judgment against B and C, upon a contract, which judgment is paid by B, the liability of C to B in a subsequent action for contribution is still an open question, because as to it no issue was made or tried in'the former suit.”
In Conwell v. Thompson, 50 Ill. 329, the syllabus is:
“The record of proceedings in a suit in chancery is not even prima facie evidence in favor of one of the parties thereto against another in a proceeding at law, where, as between those parties, in the chancery suit in which they were codefendants, there was nothing litigated.”
See, also, on this point O’Rourke v. Lindell Ry. Co., 142 Mo. 351 (44 S. W. 254); Estate of Heydenfeldt, 127 Cal. 456 (59 Pac. 839); Buffington v. Cook, 35 Ala. 312 (73 Am. Dec. 491); Koelsch v. Mixer, 52 Ohio St. 207 (39 N. E. 417); Eikenberry v. Edwards, 71 Iowa, 85 (32 N. W. 183).
As stated supra, in the case of S. Marks & Co. v. H. G. Crow and E. J. Crow to set aside the deed of conveyance referred to above, H. G. Crow and E. J. Crow' were codefendants and filed a joint answer therein; but no issue as to their rights as between themselves was made or determined by the decree in
We do not find it necessary to go into the question as to whether the plaintiff could be permitted to maintain this suit in view of his statement in his complaint and in his evidence to the effect that he made the mortgage for $6,500 to the defendant to cover up his property, so that his wife could not compel him to pay her alimony.
We find from the evidence that the plaintiff was indebted to the defendants in said sum of $6,500 when he made the said promissory note to the defendant and executed to him said mortgage. We base this finding on the decree of the Circuit Court made in the suit-brought to foreclose said mortgage and upon the other evidence as stated supra. That decree conclusively established that fact, but in addition to said decree we have the positive evidence of the defendant that the plaintiff owed him that sum and the equally positive evidence of the plaintiff, given in said suit of S. Marks & Co. that he owed the defendant that amount, and the presumption arising from the execution of said note and mortgage and the confessing of said judgment. On the other hand, we have the evidence of - the plaintiff, given in this case, that he did not owe said money and that he executed said note and mortgage to cover up his property to prevent his wife’s recovering from him alimony. We have also, the evidence of another witness that he heard E. J. Crow, at one time, say that the plaintiff was going to put his property out
B. L. McKee, a witness for the plaintiff, testified that, in 1893, he heard a conversation between the plaintiff and defendant, and that the plaintiff demanded of the defendant that the latter deed to him the home place, and that the defendant refused to do so. If those witnesses tell the truth, the defendant refused to make a deed to one piece of land 25 years before this suit was commenced, and he refused to deed him the home place 15 years before he began this suit. If the plaintiff’s claim was true, that the defendant was holding this property as his trustee, the refusal of the defendant to make those conveyances was a vio
A. H. Kennedy was the person who prepared the $6,500 note and mortgage and who foreclosed said mortgage, and it appears from the evidence that he knew the facts as to the indebtedness represented by said note and mortgage and why they were executed. Judge J. J. Walton assisted in transacting some of the important business between these parties. The mother of the plaintiff and defendant was in a position to know many of the material facts. But the plaintiff delayed bringing this suit to obtain a reconveyance of the property in dispute until after Walton and his mother had died and Kennedy was either dead or where he could not be reached and produced as a witness, and until the facts were stale and impossible to be proved as fully as they could have been shown 20 years ago. Both of the parties were elderly men when this suit was commenced, and both have died since that time. By thus delaying bringing a suit, the plaintiff was guilty of laches, and his supposed cause of suit became stale. As courts of equity aid the vigilant rather than those who slumber on their rights, the plaintiff’s laches in waiting so long before bringing a suit is of itself a good reason for bolding that no relief should be granted to his successors in interest: Wilson v. Wilson, 41 Or. 459 (69 Pac. 923); Loomis v. Rosenthal, 34 Or. 585 (57 Pac. 55); O’Brien v. Wheelock, 184 U. S. 450 (46 L. Ed. 636, 22 Sup. Ct. Rep. 354); Patterson v. Hewitt, 195 U. S. 309 (49 L. Ed. 214, 25 Sup. Ct. Rep. 35).
The material facts upon which the plaintiff relied were practically unsupported by any evidence excepting that of himself, and his evidence was contradicted by his own evidence given in another case, and by his
We hold that the successors in interest of the defendant own the property in dispute, and that the successors in interest of the plaintiff are not entitled to any of the property in dispute or to any accounting.
The court below held that the property in Eugene belonged to the defendant, and as there was no appeal from that part of the decree of the court below, it will stand.
We find that the court below erred, and all of the decree of the court below, excepting that portion thereof holding that the defendant owned the property in Eugene, is reversed, and the plaintiff’s complaint is dismissed, but neither party will recover costs or disbursements in this court or in the court below.
Beversed and Suit Dismissed.
