64 P. 384 | Or. | 1901
after stating the facts, delivered the opinion of the court.
James Denham and wife, Mary C. Denham, came to Salem some time in 1889. Between July of that year and August, 1890, Denham deposited in the Capital National Bank of Salem something over $15,000. A small amount was in cash, and the balance in the form of drafts upon New York and Detroit, Michigan, which the bank collected. The Michigan draft was drawn by Denham and wife. In the mean while, Denham purchased the land in question, and also a lot in Salem, taking the deed to both parcels in his own name. The consideration paid for the land was $7,000, and for the lot $2,000. He also opened up a boot and shoe business in Salem with James D. Richardson, his nephew, as a partner, under the firm name of James Denham & Company. On October 2, 1890, Den-ham deeded the Salem property to his wife through mesne conveyances by joining in a deed with his wife to John A. Carson, and Carson deeding to her. ■. The consideration stated in the deed is $3,000. On March 24, 1891, the land was deeded to the wife in the same manner, the consideration stated being $10,000. On May 2 following, Den-ham and wife mortgaged the land to Richardson to secure
Fleming further testifies that, on his arrival in Salem, Denham again applied to him for the loan, and agreed to transfer the stock of boots and shoes, and his wife agreed to transfer the farm as additional security, provided he would let them have the money; that he did
The witness, continuing, says: “At that time Mrs. Denham had importuned me on several different occasions to purchase the land, farm, out and out, — to buy itand, in effect, that they asked $6,000 or $7,000,-but afterwards agreed to sell it for $75 per acre, and that soon after the adjustment he bought it of her for $5,172 ; paid her $172 in cash, and gave her his notes for the balance ;
On December 23, 1895, Denham and wife signed an instrument of writing with E. J. Fleming, whereby they mutually acknowledged a satisfactory adjustment of all matters between them, and that neither party had then any claim against the other, except that Fleming was still indebted to Mary C. Denham upon four notes, of $1,000 each, giving only the dates when they would fall due. Fleming remained in Salem only about a week in June, 1891, returning and arriving at his home in Ne
We come now to the deed by Denham to his wife, on March 24, 1891. Was that a bona fide transaction, so far as Mrs. Denham is concerned? She and Denham both testify that she gave up two notes which she held against her husband, amounting to $10,000, in consideration of the deed. When asked how she obtained that amount of money, she says she made it keeping boarders, teaming, and selling stock and farm produce while in Vermont; that between 1877 and 1886, she made $6,000 in this manner, which had been loaned for three years, at six per cent, and that the accumulations thereof she loaned to her husband for three years, — that is, from 1886 to 1889, — which at the end of that time amounted to over $8,000; that her husband still held the latter amount for about a year and nine months, which ran up to over $9,000, and that she loaned him $1,500 additional, which she had accumulated at other times. Mr. Denham is more exact. He states the accumulation in 1886 to be $7,080. This he held for three years, at six per cent interest, increasing it to $8,354, which latter amount he continued to hold for a year and nine months longer, running it up to over $9,000, and that his wife loaned
A very suggestive circumstances attending the transaction is that Mrs. Denham evidently knew that Fleming was making no advancement of money whatever for their accommodation ; that Mr. Denham and herself, with security available, could have easily negotiated the loan with Ladd & Bush without the instrumentality of Fleming, and that, for the purpose of a fair and open transaction, he was a perfectly superfluous aud useless agent; that the transaction was not a sale, as it purported to be ; that Denham intended to continue the boot and sime business, which he afterwards did, in the name of Fleming ; and that the conditions thus brought about would have the effect to delay and defeat the rights of the hus