96 P. 866 | Or. | 1908
Lead Opinion
Opinion by
Applying these rules to the case under consideration, the plaintiff’s evidence discloses that prior to and at the
The testimony of Robert and Mary Phipps tends to show that, for the purpose of settling in full all 'outstanding indebtedness against them, application was made to the Alliance Trust Company for a loan of $5,000, to accomplish which Willis conveyed a part of the land to Victor Phipps, a son of Robert Phipps, retaining the rest in his own name. The object in adopting this plan was to procure a larger loan upon the entire tract, which was more readily obtained by segregation of the lands and the procuring of loans thereon separately. Loans thereon were accordingly made by the company aggregating $5,000, of which sum $3,000 was upon the tract previously conveyed to Victor Phipps, and $2,000 upon the land retained by Willis. After the mortgages were given, the land retained by Willis was also conveyed, subject to the mortgag'e thereon, to Victor Phipps; the evident purpose, thereof being to avoid the outstanding judgment liens against his father, the former grantor. When notified by Willis that the loan papers were ready, plaintiffs called at his office for the purpose of executing them. Concerning what there took place, plaintiffs each state, in substance, that, when they arrived the documents had’ been prepared and ready for their signature, and were lying upon the desk of defendant, who asked each to sign at places designated, stating that all the
“Well, he paid some.”
Q. “Did he not pay you as much, taking it altogether, as $10,000, or $12,000, or $15,000?”
A. “I do not recollect the amount. There was considerable money.”
And his daughter, who testified concerning his accounts, when interrogated along this line, gave answers of similar import. Again, defendant makes no effort to give a full account of moneys received and disbursed by him, further than as disclosed by the memoranda offered in evidence, together with statements by him and his daughter, to the effect that he had paid certain notes and made certain disbursements specified, among which was $3,466, paid to Hamilton the next day after the receipt of the $5,000 loan, which plaintiffs, as well as defendant’s daughter, testify was paid out of moneys received from 'this loan from the trust company. Notwithstanding the uncontradicted testimony that the $3,466 paid to Hamilton came out of the $5,000 borrowed, Willis includes this as one of the items that constituted the $10,756 specified in the mortgage to him. When the evidence in behalf of plaintiffs was offered, disclosing the fiduciary relation existing between them; that they paid him a large amount of money; in fact that all payments passed through his hands, giving him the exclusive management and control of all the receipts received, and disbursements made by him for plaintiffs; and that growing out of the transaction they had executed what purported to be a mortgage covering a large sum of money, which mortgage plaintiffs signed without knowledge of its contents, intent, or pur
It follows that the decree of the court below should be reversed, and one entered canceling and annulling defendant’s mortgage. Keversed.
Rehearing
On Petition for Rehearing.
[99 Pac. 935.]
We have carefully considered the questions presented on rehearing, and, after a re-examination of the case; are fully satisfied with the conclusions reached in the former opinion, which are hereby confirmed.
Denied: Reversed.