123 P. 383 | Or. | 1912
Lead Opinion
delivered the opinion of the court.
It is maintained that an error was committed in refusing to grant a judgment on the pleadings in favor of the plaintiff, on the ground that the denial in the answer of the “allegations of facts contained in paragraph 5 of the amended complaint” is insufficient amounting to an admission of the averments of that clause. The rules of plead
“Whenever upon the trial it is determined that the plaintiff is not entitled to the relief claimed or any part thereof, a decree shall be given dismissing the suit, and such decree shall have the effect to bar another suit for the same cause or any part thereof, unless such determination be on account of a failure of proof on the part of the plaintiff, in which case the court may, on motion of such plaintiff, give such decree without prejudice to another suit by the plaintiff for the same cause or any part thereof.” Section 411, L. O. L.
The decree in respect to the cross-bill states in effect that, Beatie having fully presented his case at a trial thereof, counsel for Mrs. Dose moved to strike out all the testimony so offered and to dismiss the suit, which motion was granted, and referring to the cross-bill the decree declares that “the same hereby is dismissed without prejudice.”
When a defendant in a law action interposes an answer, and thereupon as. plaintiff institutes a suit in equity in the nature of a cross-bill, such suit must be determined before any further proceedings can be had in the action. Section 390, L. O. L.; Oatman v. Epps, 15 Or. 437 (15 Pac. 709) ; Finney v. Egan, 43 Or. 1 (72 Pac. 136). If the facts stated in the complaint in the suit in equity constitute only a partial defense to the law action, which proceeding must remain in abeyance until the suit has been determined, a decree awarding the .relief prayed for in the cross-bill, or for any part thereof, would leave for consideration the remaining questions in the action. Finney v. Egan, 43 Or. 1 (72 Pac. 136). Where, however, a cross-bill is dismissed for want of equity, the trial of the law action, the prosecution of which was stayed by instituting the suit in equity, is to be resumed, as if the cross-bill had never been filed. Small v. Lutz, 34 Or. 131 (55 Pac. 529: 58 Pac. 79).
In Oregon a well-recognized distinction exists between actions at law and suits in equity, which characteristic difference cannot be so reconciled as to permit an equitable defense to be interposed to an action at law, but each cause must be tried in its particular forum, though such tribunal is presided over by the same judge. When in a law action the defendant can legally set forth the facts constituting his entire defense, his answer is adequate, and there is no necessity for a resort to a suit in equity in the nature of a cross-bill. In the case at bar the defendant had a plain, adequate, and complete remedy at law, by denying the material averments of the complaint
The evidence discloses that Mrs. Dose leased from H. Kunzie two and one-quarter acres of land in Clackamas County for a term .of seven months from April 1, 1907, and thereupon she entered into an agreement with Mahler by the terms of which he was to raise onion sets on
Mahler testified that when the mortgage was given he owed the plaintiff from $300 to $400; that Mrs. Dose furnished the seed, paid all the expenses of planting and cultivating the ground and the rent of the Koshmeder land, and supplied the witness with groceries; that about August, 1907, the cost of cultivating the crop was more than he had expected; that the onion sets were then very weedy, and not being able to secure any more money or supplies from Mrs. Dose, he was compelled to surrender to her all his interest in the crop, for which she
Fred Dose testified: That during the transactions referred to he had been the agent of Mrs. Dose. That the chattel mortgage was given to secure advances and, referring to the sum of $400 paid after the onion sets were seized, and alluding to Mahler, the witness said:
“He came in and demanded his money, and I couldn’t blame him for that, because he was afraid it would be garnished in my hands, and I paid him and had him give me a receipt for it.”
That after August, ■ 1907, and prior to the seizure, Mahler was permitted to take some “pickle onions,” a larger variety than onion sets, and in referring thereto he was asked:
“Did you, as agent for L. E. Dose, authorize him to dispose of any of those?”
He replied:
“Yes, sir; I told him he could. He could dispose of them. But I don’t hardly think he did.”
On cross-examination, however, this witness could not state where or when such permission was granted.
Mahler, being recalled, testified that 336 sacks of onion sets levied upon were cleaned, and, being weighed, averaged 108 pounds each, and the remainder or 656 sacks of
The foregoing is deemed to be a fair summary of all the testimony upon which was based the finding of fact that the sale of the onion sets from Mahler to Mrs. Dose was fraudulent and void. It will be remembered that after the levy of the execution Mrs. Dose, with notice thereof, paid Mahler $400, evidently to prevent the defendant from securing that sum on notice of garnishment. At the time the onion sets were seized, the judgment and interest on the several items thereof, not including the expense of issuing the writ and making the levy, did not exceed $245. In order to defeat the recovery oi that sum, Mrs. Dose voluntarily paid out the $300 then due and also the $100, a part of which was unearned; her agent saying he could not blame Mahler for demanding the money because it might be withheld by notice of garnishment.
It was not averred in the complaint nor attempted to be proved at the trial that the money advanced on account of the chattel mortgage formed any part of the consideration for the sale of the onion sets, or that such property was released from the lien by cancellation or surrender of the promissory note, or that any settle
Two-thirds of the onion sets produced on the land leased from Kunzie belonged to Mrs. Dose, and she was to have paid Mahler three cents a pound for the entire crop which he raised on the premises leased from Koshmeder. It is impossible, however, to compute accurately the value of her interest in the property in August, 1907, when the purported transfer to her was made. From a careful examination of the entire testimony, we think it directly appears that there was a studied purpose on the part of Mrs. Dose to aid Mahler in an attempt to defraud his creditors, and that she was not an innocent purchaser for a valuable consideration without notice.
Mahler’s testimony respecting the nine sacks of pickle onions, which, while being transferred to market, increased to 10, and his explanation of the payment to Mrs. Dose of the money received therefor when she owed him more than $300, shows him unworthy of belief. From the circumstances that no testimony was offered tending to show that the promissory note given by Mahler to Mrs. Dose was surrendered to him, or that any settlement of their accounts was ever made, and from the fact of his continued possession of the property and disposal of a part thereof, we feel satisfied with the finding of the trial court that the sale of the onion sets by Mahler to Mrs. Dose was fraudulent and void.
It follows that the judgment should be affirmed, and it is so ordered. Affirmed.
Rehearing
On Rehearing.
[125 Pac. 277.]
Opinion by
The defendant, as sheriff, held an execution against Oscar Mahler, and, at the time of the levy on the goods, found them in Mahler’s possession in a building situated on the Koshmeder place, which he occupied under a lease. The property attached was onion sets raised and owned by him at the time of the levy, unless he had parted with the title by the pretended sale relied upon here. The sheriff was justified, therefore, in levying upon them as the property of Mahler. Plaintiff had previously taken a chattel mortgage on the growing crop for $1,200, as security for $300, previously advanced, and for further advances thereafter to be made to enable him to cultivate and harvest his crop.
There was no delivery or change of control or possession of the crop. Section 799, subd. 40, L. O. L., provides :
“Every sale of personal property, capable of immediate delivery to the purchaser, and every assignment of such property, by way of mortgage or security, or upon any condition whatever, unless the same is accompanied by an immediate delivery, and be followed by an actual and continued change of possession, creates a presumption of fraud as against the creditors of the seller or assignor, during his possession, or as against subsequent*324 purchasers in good faith and for a valuable consideration, disputable only by making it appear on the part of the person claiming under such sale or assignment that the same was made in good faith, for a sufficient consideration, and without intent to defraud such creditors or purchasers. * * ”
In discussing this subdivision, Mr. Justice Bean, in Pierce v. Kelly, 25 Or. 95, 99 (34 Pac. 963, 965), says:
“The change of possession necessary to overcome and rebut this presumption (of fraud) must be actual, and not merely constructive or legal; it must be effected in a way calculated to give notice to the public that there has been a change in the ownership or control of the property; and a mere constructive possession, or one taken by words and inspection, will not satisfy the statute.”
No such change took place; therefore the sheriff’s levy and possession was rightful in the first instance, and the burden was upon the plaintiff to make it appear that the sale was in good faith, for a sufficient consideration, and without intent to defraud the creditors of Mahler.
There are several circumstances, aside from the pre-' sumption above mentioned, which tend to show that the sale was intended to aid Mahler to defraud the creditor. These are mentioned in the opinion and fully justify the finding of the circuit court. It may be that plaintiff had, in good faith, a valuable interest in the goods for advances made; but that is not the ground upon which she seeks to recover. She stakes her claim upon the pretended sale, and not upon the mortgage; and she cannot now take a new or different ground of recovery, after it is too late for the creditor to take advantage of the true conditions.
The contention that Mrs. Dose was at least entitled to two-thirds of the crop raised on the Kunzie place, as her share thereof, is not an issue suggested here. If she had sought to claim a portion of the onions by reason of having raised them herself, or as rental, she should have made a specific demand of the sheriff therefor, setting forth the nature and extent of her interest, in the absence of, which she has permitted that interest to stand or fall with the validity of the sale. Mahler raised both crops, and was in possession of them, and both are included in the mortgage. There is nothing in the record upon which a court can recognize plaintiff’s rights in the crop on the Kunzie place, either as the owner of the whole crop, or of the rental therefor from Mahler, without a specific demand upon the sheriff, disclosing her interest. Such a claim was not at any time contemplated in this proceeding, and the creditor at no time had an opportunity to meet such an issue or take advantage of it; and the same is true of plaintiff’s rights under the mortgage.
We adhere to our former opinion. Affirmed.