Kruse v. Prindle

8 Or. 158 | Or. | 1879

By the Court,

Prim, J.:

The only questions presented here for determination are: 1. Did Williams and Prindle collude and conspire together and cause the said conveyance to be made for the purpose of defrauding Kruse and Moore, and to prevent them from collecting their debts ? 2. Was the said conveyance made without consideration? The facts developed in this case show that both of these questions should be answered and determined in the negative..

The appellants having charged Williams and Prindle with collusion and conspiracy in procuring this conveyance to be made for the purpose of defrauding and preventing them from collecting their debts, the onus is upon them to prove it by legal and competent evidence. This they have failed to do. (Bump on Frd. Conv. 368.) These conveyances having been made and executed on the same day, and between the same parties, and relating to the same subject-matter, should be treated and considered together as one instrument. (Cornell v. Todd, 2 Denio, 130.)

In this case the evidence not only fails to show collusion and conspiracy between Williams and Prindle with intent to delay or defraud the appellants, but on the contrary, it shows that Williams was an insolvent debtor, and that these conveyances were executed for the purpose of making an equal distribution of the proceeds of his property among his creditors. The fact that such creditors as were secured by mortgage were preferred in said assignment, did not vitiate and render the same void, as under the law a debtor has the right to prefer one creditor to another. (Bump on Frd. Conv, 344; 11 Wend. 241; 3 Paige, 537; 11 Wheaton, 556.)

A special defense is made in the answer of Prindle against the claim of Kruse, upon the ground that the assignor, Williams, was, in fact, surety in that case, and that the debt was secured by a chattel mortgage, which Kruse had failed to enforce, by which he was released as such surety. In the recorded deed, the considerations recited are one dollar, and other valuable considerations, which have been fully shown in this case.

It was urged, on the argument of the case, that Williams had no interest in the property to assign after having executed the recorded deed'. We regard that argument as extremely technical, and entitled to no weight, and especially when we find, that they were both executed at the same time. There being no evidence showing fraud in the execution or delivery of these deeds of assignment, either on the part of the assignor or assignee, they should be upheld and sustained by a court of equity.

The decree of the court below is affirmed.