133 P. 345 | Or. | 1913
delivered the opinion of the court.
Plaintiff and defendant commenced to live together as husband and wife in 1903, and so resided, without being married, until February, 1910. On the 25th day of April, 1906, defendant by warranty deed conveyed the premises in question to plaintiff, the deed being duly recorded in Lincoln County May 2, 1906. This deed recites a consideration of “one ($1.00) and other valuable consideration. ’ ’ The plaintiff claims title by virtue of this deed. A certified copy of the record of deed of the land from plaintiff to defendant, purporting to have been executed on the 23d day of December, 1907, to have been witnessed by W. S. King and D. M. Donaugh, and acknowledged before the latter on that date, was offered in evidence by plaintiff. This deed was recorded in Lincoln County March 15, 1910. Plaintiff asserts that it is a forgery and void. She states that she signed a deed of the land to defendant on September 17, 1906, in the presence of S. W. King and D. M. Donaugh, and acknowledged the same before Mr. Donaugh; that the deed was signed for the purpose of aiding defendant’s financial standing in connection with a certain logging contract which he had; that soon after signing this deed she went east for a time and left the same for the defendant to make use of in case of necessity, but that the logging contract was abandoned and the deed never used nor delivered to the defendant; that she destroyed it about 1908. The defendant’s version of the matter is that he executed the deed of April, 1906, as security for a loan to him of about $500, in order to pay a demand upon which action against him was instituted and an attachment levied upon the land by Roebling & Son; that in December, 1907, he paid plaintiff the loan, and that she reconveyed the land by the deed in question; that after leaving this deed'he placed it in his trunk,
The plaintiff asserts that she loaned various sums to the defendant and paid sundry accounts for him; that in 1909 they went to California for the benefit of her health, where the defendant left her and returned to Oregon a short time before the deed in question was recorded; that they have not lived together since then. The deed of April 25, 1906, conveyed the title to the land to the plaintiff. While it is mentioned incidentally that this was given as security for a loan, there is no issue of that kind in this case. This is not a suit to declare the deed of April, 1906, a mortgage: Stuart v. Lowry, 49 Minn. 91 (51 N. W. 662); Merrill v. Dearing, 47 Minn. 137 (49 N. W. 693). The testimony shows that the plaintiff is the owner in fee of the disputed real estate, unless the testimony of the defendant establishes that there was a reconveyance of the land from the plaintiff to the defendant. Before the estrangement between the parties they were very friendly, and transacted their business in a lax manner. Evidently they expected to marry. Since that time their attitude toward each other has been the reverse.
2, 3. Defendant admits that it was understood that if he died, plaintiff was to have the title to the land. He claims that it was unnecessary to bolster up his credit, as the logging contract had been executed before September 17, 1906. This, however, does not show that he did not state to plaintiff that such was the case, as a reason for obtaining her signature to the deed. The defendant asserted no claim or right to the land
The deed being assailed by the plaintiff as a forgery, the burden is on the defendant to prove all the facts necessary to make it a valid and binding instrument
The decree of the lower court will therefore he reversed, and one entered here declaring the plaintiff to he the owner of and entitled to the possession of the land.
Reversed : Rehearing Denied.