15 Or. 380 | Or. | 1887
In this case the appellant sues as administrator of the estate of Thomas Sherlock, deceased. The object of this suit is to set aside, and to have declared void for fraud, a certain deed of conveyance made by Thomas Sherlock in his lifetime to the respondent Dora Schloath. This suit was commenced and is prosecuted by the order of the County Court of Multnomah.
The answer denies the allegation of the complaint, and then alleges that on or about the fifteenth day of June, 1885, the said Thomas Sherlock and Dora Schloath had an accounting and settlement of all their affairs and business transactions, upon which said accounting and settlement it was found and ascertained and mutually agreed upon that said Thomas Sherlock was justly and truly indebted to said- Dora Schloath in the full sum of two thousand dollars for board and lodging, and for money loaned and furnished said Sherlock, and that, in consideration of said sum of two thousand dollars, and the further sum of one hundred dollars then and there paid him, the said Sherlock made and delivered the deed in question. The reply presents an issue as to the new matter in the answer.
The consideration must be regarded as nominal. Counsel for the defendant seem to realize that this result must follow, unless they can support the deed by showing that there was in fact a further and additional consideration to that expressed in the deed, and which is sufficient, if shown to be bona fide. The proof offered tends to prove that about the time of the execution of the deed, Dora Schloath and Thomas Sherlock had a settlement, and that in that settlement Sherlock acknowledged himself to be indebted to her in the sum of nearly four thousand dollars, mainly for board and lodging, and for a few items of money loaned; that this was all the property Sherlock had, and that Mrs. Schloath agreed to take it at two thousand dollars, in full payment and satisfaction of her claim. The evidence on this point, however, does not seem satisfactory, for reasons to be more fully stated hereafter. It may be observed now, however, that no reason is shown why this account was not paid sooner. Sherlock was in business, and appears to have had money and property, and it does not appear that he was unable to pay it. Furthermore, at the time of this alleged settlement, Sherlock was close up to the border line of imbecility, brought about, as
Upon the whole case there is such a cloud of doubt and uncertainty hanging around the transaction, and the evidence offered of this pre-existing debt is so unsatisfactory, that we must hold the deed in question to be constructively fraudulent as to the existing creditors of Sherlock. It will therefore be set aside as to these creditors, the property will be decreed to be sold, and out of the proceeds Dora Schloath will be first paid one hundred dollars, with interest at ten per cent per annum from the fifteenth day of July, 1885, the date of the deed, and the residue will be turned over to the plaintiff, to be applied in due course of administration.