Davis v. Davis

20 Or. 78 | Or. | 1890

Stbahan, C. J.

— In the view we take of this case, it is not necessary to particularly notice all of the questions attempted to be raised by counsel for appellant on this appeal. In the first place, it must be conceded that the plaintiff recovered a judgment against the defendant M. W. Davis on a note that bears date prior to the execution of the deed to Emily Davis, and that there was no valuable consideration passed between Emily and M. W. Davis at the time the deed was executed; in other words, that it wras purely a voluntary déed. This entitles the plaintiff to the relief which he seeks, that is, to set aside the deed as constructively fraudulent, so far as it hinders or delays the plaintiff in the enforcement of his judgment unless the legal effect of these facts is averted by something else apparent in the record. The note upon which the judgment mentioned in the complaint was entered, bears date November 20,1888, and the deed in question January 19, 1889, so that upon the face of the record the debt existed at the time of the conveyance. But the defendant Fanny Davis insists that she may go behind the judgment, and that if it appears that the debt was fictitious or barred by the statute of limitations in the first case, it would not support the proceeding and in the other, it could not be revived to her prejudice. These questions will be separately examined. The first is one of fact; the second, one of law.

1. For the purposes of this case, the defendant Emily Davis has the right to inquire behind the note upon which the judgment mentioned in the complaint is founded. And for this purpose we think she may inquire into the consideration of the note, because if there was not an actual subsisting debt due and owing by M. W. Davis to L. M. Davis at the time the note was executed, the execution of the note could not create one, nor would such transaction constitute the plaintiff a creditor within the meaning of the statute. It is therefore necessary to look to the evidence on that subject. The only evidence offered is the plaintiff. He testifies in substance that on the 14th day of October, 1888, M. W. Davis was indebted to him between sixteen hundred and two thousand dollars for medical attendance, money advanced and furnished lodging, washing, etc.; that about the 20th day of November of that year the parties had a settlement, made a lumping settlement in the sum of $1,500? for which he took the note upon which the judgment mentioned was rendered, and that nothing had been paid thereon. On his cross-examination he testified that $480 of this sum was advanced, he thought, in 1878, and $40 more the following year; $75 at another time, and about $500 was advanced to buy his stock and dental outfit when he came to Roseburg. Thinks this was in 1879 or 1880. He further testified that the items for boarding and nursing accrued in Missouri in 1876 or 1877. He further says he charged $250 for dental tuition and $250 for board while M. W. lived with him for the purpose of receiving instruction, and that M. W. is a younger brother. No books of account were produced, and there is a degree of vagueness and uncertainty in the evidence which tends to render it somewhat unsatisfactory, but it is not contradicted nor is the credibility of the witness assailed. This evidence is weak and somewhat unsatisfactory, growing out of the delay in asserting the claim against M. W. and all the attending circumstances; yet we do not think it can be rejected. Unless rebutted or overthrown in some way, it is prima facie sufficient to prove that the note sued on was founded upon a sufficient consideration.

2. The appellant next insists that it appearing that more than six years elapsed after the demands of the plaintiff accrued and became due and payable, they are barred by the statute of limitations, and that as against her they could not be revived or made the foundation of a claim upon which a judgment could be entered and made the basis for an attack on her title. If this contention were tenable in a proper case, and we think it is, it cannot avail this defendant for two reasons: First, she did not plead the statute of limitations, and, second, so far as the facts are disclosed by the evidence, the new promise was made before the deed to the defendant Fanny Davis was executed. The rule of law must be taken as settled in this state that if a claim be set up against a party, which is barred by the statute of limitations and the fact appears upon the face of the proceeding, the objection must be taken by a demurrer; otherwise it must be taken by answer; and if not taken either in one form or the other according to the fact, it is to be deemed waived. In this case, the objection did not appear on the face of the complaint. It was necessary therefore to take it by answer or else it was waived. The objection as to the new promise we think equally unavailing. If Fanny Davis had relied upon the statute of limitations in her answer, and the new promise had been made after the execution of ihe deed of M. W. Davis to her, we think that no new promise that M. W. might have made could have affected her. But so far as the evidence discloses the facts, the new promise is older than her deed. It is true her counsel have argued with great tact and ingenuity that this is a mere device resorted to by these brothers to over-reach her and to enable the plaintiff to attack her title. The fact may be so, but it rests on conjecture merely and not on the evidence. If this new promise were made before the deed to the defendant Fanny Davis, no reason is perceived why it should be held invalid as against her. At that time she had no interest in this land. M. W. Davis owned it and could have mortgaged it to secure an outlawed debt if he had thought proper to have done so. He might have been sued on this old outlawed account which his brother held against him and refused to demur to the complaint on the ground that the debt sued on was barred, and the plaintiff could have taken a judgment against him and subjected this same land to its payment before it was conveyed to his wife and no one could have interposed any objection. For the reasons indicated, the statute of limitations is not in this case and cannot influence its determination.

3. There is one other question that seems to require some attention. Hill’s Code, § 2874, makes the expenses of the family chargeable upon the property of both the husband and wife. Whatever family expenses were incurred while either of the parties owned this property were a charge upon it; and if after Fanny Davis received the title she paid any such expenses, her equity for the amount paid is superior to the plaintiff’s and must be first satisfied. The evidence tends to show the amount was $300. So as to the claim of Aaron Rose for the balance of the purchase money, whether Rose had a lien for it or not, she paid it, and the same must be returned to her before the plaintiff is paid anything.

The decree of the court below will therefore in all things be affirmed except that Fanny Davis will be first paid out of the proceeds of the sale of the property $300 with interest at 8 per cent per annum from the date of payment, which the court below is directed to ascertain, and the further sum of $145, paid by Fanny Davis to Aaron Rose, with interest thereon at 8 per cent per annum, which the court below ia also directed to ascertain.