161 P. 703 | Or. | 1916
delivered the opinion of the court.
“The court may, at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceeding to be amended by adding the name of a party, or other allegation material to the cause; and in like manner and for like reasons it may, at any time before the cause is submitted, allow such pleading or proceeding to be amended, by striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or when the amendment does not substantially change the cause of action or •defense, by conforming the pleading or proceeding to the facts proved.”
It will be observed that there are two different periods in litigation in which the court may allow an
“A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.”
See, also, 8 Words and Phrases, 7095.
The record does not disclose that any demurrer had been filed; hence there had been no trial of an issue of law. The judicial examination of the issues had not yet begun when the amendment was offered, and hence it was admissible, although it may have changed both the cause of suit and the quantum of proof required.
“To enable a creditor herein to maintain a suit to set aside a conveyance by the debtor as fraudulent and void, he must show an unsatisfied judgment or an attachment upon a cause of action existing at the time of the conveyance; or on a cause of action arising subsequent thereto, and that in the latter event the conveyance was made with the express intention of defrauding subsequent creditors.”
And, further, that:
“To avoid a voluntary deed because fraudulent as to existing creditors, the cause of action must exist at the time the conveyance is made, and this must ap*411 pear from the record in the action in which the judgment was recovered.”
The defense argues from this language that no “cause of action” arises until the creditor has a right to commence proceedings to recover his debt, with the resulting conclusion that unless the creditor’s debt is past due when the conveyance is made, the transfer of title, although purely voluntary, cannot be overturned, unless it can be shown that it was made with the express purpose of defrauding subsequent creditors, and, moreover, that unless the judgment-roll in the action shall itself disclose that the debt was overdue at the date of the conveyance, the creditor is without standing to defeat the transfer. In part the language of Section 7397, L. O. L., is this:
“Every conveyance or assignment in writing or otherwise of any estate or interest in lands * * made with the intent to hinder, delay, or defraud creditors or other persons of their lawful suits * * as against the persons so hindered, delayed, or defrauded, shall be void.”
“We observe that the term “creditors” is not restricted to those whose demands are overdue. The statute is in favor of all creditors, and not any particular class of them. It is quite as culpable for the debtor to alienate his property with intent to defraud one whose claim is not yet due as thus to seek to injure one whose demand has matured. To distinguish between the two wrongs is not consonant with sound logic.
“If, then, there is no more proof than the judgment itself — in the absence of fraud or collusion, as we have seen — it is evidence of the existence of a debt at the time of its rendition, and only at that time. This is sufficient to entitle the judgment creditor to impeach the fraudulent conveyance as tainted with actual fraud. In such case, the burden of proving the actual fraud would be upon the complainant. If the complainant, however, would use the judgment to the prejudice of a grantee in a deed alleged to be only voluntary and constructively fraudulent, there must be independent, distinct evidence of facts showing the cause of action which authorized the rendition of the judgment, and that it is older than the conveyance.”
The subject is learnedly discussed in Eggleston v. Sheldon, 85 Wash. 422 (148 Pac. 575), by Mr. Justice Fullerton, not only permitting, but requiring in such instances, that the plaintiff shall show an actual indebtedness older than the conveyance attacked, where the reliance is upon a purely voluntary transfer of the title. Eightly understood in consideration of its facts, the case of Seed v. Jennings, 47 Or. 464 (83 Pac. 872), does not teach the contrary doctrine. There the father of the plaintiff, while the latter was yet a minor, conveyed to him certain real prop