43 P. 490 | Or. | 1896
Opinion by
In this connection Simon’s testimony shows that the McGinn mortgage was given in the morning. This not being satisfactory, because the legal title was in Miller, it was arranged that Miller should execute to Lord a second deed, and then that Lord should execute a mortgage to Simon, and this was accordingly done the same day, Lord executing the note for one thousand dollars, which the mortgage was given to secure, Simon writing out the second deed himself. Lord admits that he realized five hundred and eighty-five dollars and sixty cents out of the personal property which he had acquired under the bill of sale. From this testimony we are to deduce the object and purpose of the second deed, it being substantially all that was offered bearing upon the subject, except as the testimony adduced touching the value of the land may affect it. The court below found from the testimony of a multitude of witnesses called upon that question that its value at the time these deeds and mortgages were executed was five thousand dollars, and this finding we are not inclined to disturb. Miller was not called as a witness. A corollary contention is that, whatever might have been the effect of the first deed to Lord, the second was intended by the parties to be
The 1 * attendant circumstances ” in the case at bar, other than those related may be briefly stated. Miller was under arrest for a grave offense, then thought to be more serious than it afterwards proved to be, he being apprehensive that Morrell 'would die of the wound received at his hands. . He had incurred a civil liability to Morrell because of the assault made upon him, and had previously transferred all- his property, of the aggregate value of five thousand five hundred and eighty-five dollars and sixty cents, to Lord, for the purpose of securing his fees for service as an attorney, with a declaration of trust that the balance should be disposed, of as he and Lord should agree. At the time of the execution of these deeds Morrell was a creditor of Miller under Philbrick v. O’Connor, 15 Or. 15 (13 Pac. 612). This being so, the plaintiff claims that the latter deed was fraudulent as to him, as well as the first. There are some attendant indieia of fraud, such as the transfer of all Miller’s property of such considerable value to Lord; the declaration of a secret trust in connection therewith; and the inadequacy of consideration for the second deed. But, upon the other hand, Miller was deeply interested. He was in the toils of the law, charged with a grave offense, and his object was to extricate himself therefrom. The purpose of making such use of his property as to secure able counsel to conduct his defense, and to attend to other apprehended litigation, was perfectly legitimate. His right to be heard by counsel is a constitutional right, and he should be permitted, unless hindered by legal process, the free and untrammeled use of his property to obtain legal assistance, otherwise
Modified.
On Motion to Recall Mandate.
Per Curiam. This is a motion by respondent McGinn, Sears and Simon for an order recalling the mandate heretofore issued in this cause. The relief sought thereby seems to be to have the decree so modified as to relieve N. B. Simon and Henry E. Mc-Ginn from the requirement to cancel their mortgages, and to have the mandate withheld until the defendant Fowler can be barred of whatever interest he may have in the premises by a foreclosure of Simon’s mortgage. The effect of the decree is to declare the deed to the real property in the hands of Mays an equitable, mortgage to secure his reimbursement for certain moneys advanced in discharge of prior liens, and to secure him in the payment of certain fees to which he is entitled for services in the defense of Miller, subject, however, to the prior mortgage from Lord to Simon for one thousand dollars and interest. It also determines the priority of all liens of the parties to the suit except Fowler’s. Fowler not having been served and not having appeared in the suit, no decree could be entered affecting his interest whatever it may be. The real property was ordered sold, and the proceeds applied in payment of the liens in the order of their ascertained priority, and that the parties to the appeal be barred and foreclosed of all right or interest therein. Although the suit was instituted for the purpose of having certain conveyances and mortgages set aside, which it is claimed were fraudulent and void as to plaintiff, and subjecting the premises to the payment of his judgment, the result was in effect a fore