149 P. 473 | Or. | 1915
delivered the opinion of the court.
It appears from the evidence that E. Stewart was the uncle of H. B. Hayes, the husband of Della Hayes, they having been married in 1900. E. Stewart is also a director of the plaintiff bank. Hayes had a honje
The husband had other property, and afterward became largely indebted directly to the plaintiff bank, and in Maych, 1913, it instituted an action against him for the moneys directly due it from him. On the following day it brought another action against the husband on the indebtedness then due to the uncle, E. Stewart, the latter having assigned the notes to the bank for collection. Judgments were recovered in both actions and the other property of the husband was bid in on execution sale for the full amount of the bank’s separate judgment, and this suit was instituted to subject the property included in the deed to the wife to the satisfaction of the judgment which the bank recovered as assignee of the uncle. The husband and wife separated in December, 1912, and she procured a divorce from him, since which time he has remarried. The uncle testifies that he knew nothing
*413 “The question of fraudulent intent in all cases arising under the provisions of this chapter shall be deemed a question of fact, and not of law.”
Section 7401, L. O. L., reads thus:
“The provisions of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor. ’ ’
Under the provisions of this section it would matter not how full or adequate the consideration might be which the grantee paid for the conveyance if she had previous notice of the fraudulent intent of her grantor.' On the other hand, the statute does not give any heed to the mere adequacy of consideration. If without notice of her grantor’s fraudulent purpose she acquired the land for a valuable consideration, her title is protected by the terms of Section 7401, L. O. L. It is apprehended that gross insufficiency of price might be considered as a circumstance tending to prove fraud in case there was any element of deceit or concealment. So far as that is concerned a person having a right to sell property may at his option sell it for much less than its actual value, and that alone would not be sufficient to nullify the conveyance in favor of some other claimant.
The disposition of the cattle was a matter between the husband and wife resulting in a just claim on her part against him which he had a right to prefer even against his uncle. It appears that some at least of the plaintiff’s cattle went into the possession of the uncle, but whether they did or not cannot affect the indebtedness of the husband' to the wife, if in fact, as it appears without dispute, he used the property for his own purposes.
In brief, the husband was indebted to his wife. He conveyed to her the property. The transaction was without concealment, and being brought home to the knowledge of the uncle he, by his long inaction, must be held to have acquiesced in the same. No fraud can be imputed to a transaction where the one attacking it has practically assented to it and adopted it. The element of acquiescence distinguishes it strongly from a case where one is defrauded before his eyes, however unwillingly. It is apprehended that if the domestic relations of the nephew and his wife had continued harmonious we would have heard nothing of this proceeding. Having a right to prefer his wife creditor, the husband did so openly, and the uncle creditor having acquiesced in it for so long with knowledge of the situation, cannot now justly claim that the preference in her favor should be ignored and her property taken to pay his debt. . '