Gillard v. Gillard

171 P. 557 | Or. | 1918

MOORE, J.

It is contended that the referees, who were appointed to partition the land, construing the interlocutory decree as mandatory, complied with its terms instead of recommending to the court that such division could not be equitably made, and that in setting off to the plaintiff the quantity of land awarded to her from the best part of the farm, a great injustice was inflicted upon the defendant. An examination of the land described in the complaint will show that it is 10 chains or 40 rods in width and 80 chains or 320 rods in length. The- evidence shows that the north part of the premises is elevated and while about five acres on the hill have been cultivated that part of the land is rocky and unproductive. Though the only way of reaching the summit is by a trail which cattle have made, the path is sufficient to enable farming implements to be taken to and from the hill. No water, except the rainfall, is found on that part of the land, which is of no value except for pasturage. A county road extending east and west crosses the land about the middle. A house and barn have been built north of the road, on which side of the highway about five acres of level land have been cultivated, and two springs at the foot of the hill afford water for domestic purposes. At the south end of the farm is a slough having brush around its margin. Mr. Gillard testified that there had been cultivated about 15 or 16 acres of land south of the county road and about a half acre north thereof. M. F. Hays, his witness, stated upon oath, however, that about 30 or 35 acres of the land had been farmed, five acres of which were north of the highway. Mr. Gillard insisted that the real property could not be equitably divided, and for that reason the land should be sold. It was therefore to his interest to minimize as much as possible the area of cultivated land, and this being so the testimony of Mr. Hays on this branch of the case is entitled to greater credit. His sworn statement, respecting the quantity of land which was susceptible to' farming, will be accepted as a fair estimate.

1. It will be remembered that the land set off by the referees to the plaintiff consists of a strip 5 chains in width, or one half of the breadth of the entire tract and extends north from the south boundary 53.33 chains, thereby leaving to Mr. Gillard the greater part of the poor land on the hill and giving him only the east half of the south part of the premises. A mere comparison of the apparent relative values of the tracts thus segregated would induce the conclusion that the division was very prejudicial to his rights and evidenced a want of proper discrimination on the part of the referees in making what should have been an equitable division of the real property. Though no testimony was given tending to show the reasons which prompted a division of the premises in the manner indicated, by invoking the disputable presumption “that official duty has been regularly performed” (Section 799, subd. 15, L. O. L.), the referees must necessarily have considered the value of the house, barn and other improvements upon the land which they set off to Mr. Gillard on the north side of the county road. The plaintiff referring to these buildings testified generally that the party receiving one third of the land measured from the south end would not secure the house or bam. We conclude, therefore, that the real property was equitably partitioned in severalty to the plaintiff and Mr. Gillard.

2. The affidavit of E. Dorgan, one of the referees, is to the effect that at the time of making the allotment he believed the best interests of the parties would have been subserved by a sale of the land; that he did not then know it was within the powers of the referees to advise such a course; that he understood from the interlocutory decree that the referees were commanded to partition the real property and for that reason he did not recommend a sale thereof. This sworn statement is equivalent to a plea of ignorance of the law in respect to the questions submitted, which lack of knowledge excuses no person. If Mr. Dorgan alone had reported that the real property of which division had been decreed was so situated that partition thereof could not have been made without great prejudice to the owners, the court might not have been satisfied from the showing, or made an order directing the land to be sold: Section 447, L. O. L. Assuming without deciding that a referee under such circumstances can be permitted to impeach a report which he voluntarily signed with two others, his affidavit is insufficient for that purpose.

3. The testimony of A. L. Geddes, another referee, is to the effect that 60 acres of land on the hill was not worth more than 20 in cultivation on the south part of the premises. This sworn statement does not challenge the conclusion hereinbefore reached that the value of the house and barn which were erected upon the tract awarded to Mr. Gillard, did not make the land set off to him twice the worth of that appropriated to the plaintiff. No error was committed in confirming the report of the referees.

In support of the judgment which the defendant Hays secured against Mr. Gillard there was received in evidence the original note, purporting to have been executed September 17, 1910, for $1,000, payable in five years with interest after date at the rate of 6 per cent per annum. A certified copy of the mortgage of the land, executed by Mr. Gillard to Hays was also received in evidence. This sealed instrument contains a copy of the note intended to be secured, which is for $2,500, dated July 21, 1909, and was made payable in seven years with interest after date at the rate of 6 per cent per annum. Though neither of these notes contain a stipulation for the payment of interest until maturity, indorsements of interest were annually made thereon.

The testimony shows that when Mr. Gillard purchased his farm he borrowed $500 from Hays for which he gave a promissory note that was received in evidence bnt bas not been brought up. Several witnesses testified that Mr. Gillard had remarked in their presence and hearing that he had paid off that note. Mr. Hays testified that Mr. Gillard was indebted to him to the extent of about $2,500, which sum of money was used by the borrower in purchasing stock to be placed on the premises. The $2,500 so referred to was probably evidenced by the mortgage note and did not include the $1,000 judgment besides interest, attorney’s fees, etc. Mr. Hays is a day laborer and he is probably not accustomed to loaning large sums of money, and for that reason ought to remember the circumstance. It seems altogether improbable that he should forget an item of more than $1,000, if the transaction were other than a mere sham. The answer to the complaint herein avers that the farm is not worth more than $3,500. It seems doubtful that a sum of money equal to the alleged value of the land would have been loaned by Hays without security at a low rate of interest, which was not payable until five and seven years respectively. He testified that at one time he notified the assessor of a credit which he held of $80, but that for four or five years prior to the trial he had not been assessed, which fact tends to confirm the conclusion that he was a willing party to a deliberate fraud.

It also appears from the testimony that abont January 1, 1915, when Mr. Gillard negotiated a sale of the farm, he received on account of the purchase price $1,500 and soon thereafter loaned $800, taking a mortgage as security therefor, and that the defendants Gillard and Hays, as witnesses, had an opportunity fully to explain the times, places and circumstances of the alleged loans and the sources from which the money, designated to be evidenced by the promissory notes, was obtained. Instead of taking advantage of the occasion each seemed studiously to avoid any reference 'thereto, except in a general way, and from the manner in which they testified on this branch of the case we are satisfied the trial court properly concluded that the alleged loans were fraudulent, the judgment void, and that a conspiracy had been entered into between these defendants, to prevent the plaintiff from securing the fruits of her divorce decree.

After the defendants James Gerwick and his wife had been served with a copy of the summons in this suit, an amended complaint was filed but no order was made fixing the time within which they should answer, as required'by the statute: Section 70, L. O. L. These defendants not appearing in any manner, a finding of fact was made to the effect that they held a contract to purchase the farm for $7,000, but had not performed their part of the agreement, and that whatever interest they or either of them had or held in or to the real property was subject to the paramount rights of the plaintiff thereto. No decree was made strictly or otherwise foreclosing such contract, and by reason thereof the rights of Gerwick and his wife have not been barred, and the plaintiff and Gillard hold the tracts so allotted to each, subject to the terms of the contract of purchase.

It follows from these considerations that the decree should be affirmed, and it is so ordered. Affirmed.

McBride, O. J., McCamant and Bean, JJ., concur.