23 Or. 455 | Or. | 1893
This is a suit or cross-bill in equity to enjoin an action at law for the recovery of certain real property, which had been begun by defendants against the plaintiffs, and praying that the defendants be declared trustees of such real property for the benefit of the plaintiff Annie Petrain, and that she be also declared the actual owner of the same, and entitled to the possession thereof. The facts out of which the controversy arises, as exhibited by the pleadings, are briefly these:
The defendants denied that plaintiffs own any right,
It is admitted that the plaintiffs were in the actual possession of the property at the time of the purchase, and for several years preceding, and that it was of that character which places the purchaser upon inquiry. The effect of possession is to excite inquiry with reference to the title, and operates as effectually to notify a purchaser as any other circumstance the knowledge of which may be brought home to him. Mr. Pomeroy says: “If a purchaser, or encumbrancer, dealing concerning property, of which the record title appears to be complete and perfect, has information of extraneous facts, or matters in pais, sufficient to put him on inquiry respecting some
As it is conceded that the plaintiff Mrs. Petrain was in the actual possession of the property at the time of the sale, and that by reason thereof the defendants were put on inquiry, they must therefore stand charged with constructive notice of whatever right, title or interest Mrs. Petrain had in the property which might have been ascertained by means of due and reasonable inquiry. The question, then, for our determination is, what right, title, or interest had Mrs. Petrain in the property in controversy at the time of the sale of it? This question is entirely one of fact, and is to be ascertained wholly from the evidence. The defendants claim there is no evidence sufficiently clear and decisive to show that Mrs. Petrain had any right or interest in the property other than bare occupancy, and if this is so, it is immaterial whether they prosecuted the inquiry which her possession made incumbent upon them. It is important, however, that the evidence should sustain their contention, for if its examination should satisfactorily disclose that Mrs. Petrain had some equitable right or interest in the premises,they must suffer the consequences of their omission to
The evidence shows that Mrs. Petrain and Mrs. O’Brien are sisters and the daughters of Mrs. Showers, now deceased, and that Wm. Showers, an important witness, was her husband; that Mrs. Showers died without a will, but that prior to her death she was paralyzed and unable to attend to her affairs; that there was the sum of three thousand dollars, which came from her, deposited in one of the banks of the city in the name of her daughter, now Mrs. O’Brien, at the time of her death. Mrs. Petrain testifies that this money was deposited in the bank in her sister’s name for convenience, owing to the inability of her mother to attend to any business; but Mrs. O’Brien testifies that it was a gift from her mother, and was deposited in the bank by her and as her property. However this may be, there are many circumstances which lend countenance to Mrs. Petrain’s version of the matter. With two thousand and five hundred dollars of this money Wm. Showers bought- a piece of property upon which there was some talk of building a house for Mrs. Petrain. In respect to this matter, Wm. Showers testifies that “Mrs. O’Brien made the remark, and had at different times, that she wanted Mrs. Petrain to have as much as she did, and she wanted to divide with her; and that I told her that this was a small piece of ground to divide; neither of you will have anything when you get it divided up. She said it was very small. I said I had a half block in the lower end of the town (Couch’s Addition) that I would give her for this lot, which was worth one thousand dollars more than this, but that I would turn it over to you, as you want it for that purpose. She was rather anxious to do it; so we made the transfer, and at the same time — perhaps not at the same time, but after that — they got to talking about building the house, and they asked me how they would get at it. I told them they could leave one lot in my name and I would”_ Here being interrupted as to what “the understanding
He then proceeds in substance to testify that the' understanding was that '‘ one of these ladies should have two lots and the other two lots;” that “they agreed among themselves that they were to leave one lot in my name for to build a house upon the other lot;” that he traded that lot, which he held, to Alfreds to build a house upon the other lot, and that it was built for Mrs. Petrain, who has occupied it ever since. Upon cross-examination, he said that Mrs. O’Brien ‘ ‘ suggested the idea that she wanted to divide with Annie” (Mrs. Petrain); and when asked if “she simply said she wanted to make Annie a gift,” he answered: “No, not a gift; that word wasn't used. She said she wanted to divide with Annie; that the money had been left in her name, and she wanted to divide with Annie.”
It is evident, in view of all the circumstances, that Mr. Showers understood from Mrs. O’Brien that she did not claim that the whole of the money belonged to hex-,— that it was only deposited in the bank in her name, — but that she recognized that her sister Mrs. Petrain was entitled to her share of it, and that the object of the exchange of property was to make an equal division between them. To aid Mrs. O’Brien in carrying out this purpose, he was willing to give them property more valuable than he received. He would hardly have done this unless he understood the arrangement and the object to be accomplished by it. And in pursuance of this arrangement, his evidence shows that the exchange of property was made; that one lot was left in his name to be used in building a house oh the other lot for Mrs. Petrain; that he deeded the lot to the contractor for building a house on the other lot, and that Mrs. Petrain immediately
Mrs. Petrain testifies that Mr. Kiernan, one of the defendants, was informed of her ownership of the propel erty, and he stated that he had not purchased the same, but that Mr. Kern had purchased it; and she also says that Kern knew he had no right to buy it, as she had had a conversation with him several weeks prior to his purchase, giving him notice of such ownership. Mr. Petrain testifies that prior to the sale he met Mr. Kiernan, and informed him that the property belonged to Mrs. Petrain. Mr. Kern contradicts them, and states that he had purchased the property prior to this conversation. There was an allegation of fraud, but we have not deemed it necessary to refer to it, or lay any great stress on the fact that the property was sold for a sum considerably less than its value.
In view of the evidence and all the surrounding circumstances, we are unable to see that there was any error, and must affirm the decree.