Seed v. Jennings
47 Or. 464
Or.
1905
Check Treatment
Mr. Justice Bean

delivered the opinion of the court.

1. There is no evidence to support the claim that the deed from John S. Seed to the plaintiff was made in trust' for the grantor. W. A. Cleland, who drew the deed, testified that Seed said to him at the time that his arrangement with his then partner was not satisfactory, and that he Avas *467going to close out his business and leave the country, and desired to deed the property in question to his son and another tract to his wife, “so they would be taken-care of.” Mrs. Seed says that prior to the making of the deed Seed had often talked of going away, and, as she was not provided for, she told him that she wanted him to give her one of the houses, and he said that he would do so, and would deed the other to the plaintiff “for his education.” This is all the testimony in the record as to the purpose for which the deed was made, and clearly shows that it was intended at the time as an absolute conveyance of the land by the father to his son.

2. A voluntary conveyance of property by a parent to a child, expressed in the deed, as in this case, to be in consideration of love and affection, is presumed to be an advancement (1 Am. & Eng. Enc. Law, 2 ed. 765; Lott v. Kaiser, 61 Tex. 665); and this presumption applies here as there is no evidence to rebut it. The title of the property, therefore, passed from John S. Seed to the plaintiff.

3. As the attempted reconveyance thereof by the plaintiff, made in September, 1901, was promptly disaffirmed by him on coming of age, the title is now in him: Tucker v. Moreland, 35 U. S. (10 Pet.) 58, (9 L. Ed. 345); Craig v. Van Bebber, 100 Mo. 584 (13 S. W. 906, 18 Am. St. Rep. 662, and note); Scranton v. Stewart, 52 Ind. 68 ; Long v. Williams, 74 Ind. 115 ; Green v. Green, 69 N. Y. 553 (25 Am. Rep. 233).

4 But it is urged that, in any event, Jennings had a cause of action against Seed at the time the deed was made for alienating the affections of his wife, and was therefore in legal contemplation a creditor of Seed, and as to him the deed is void, because made voluntarily, and without consideration. Whatever the rule may be in other jurisdictions, it is the doctrine here that one having a right of action for damages against another for tort is a creditor of the wrongdoer within the meaning of Sections 5508 et seq., *468B. & C. Comp., declaring conveyances of property made with intent to hinder, delay and defraud creditors,’-void as to such creditors : Barrett v. Barrett, 5 Or. 411; Philbrick v. O’Conner, 15 Or. 15 (13 Pac. 612, 3 Am. St. Rep. 139); Coolidge v. Heneky, 11 Or. 327 (8 Pac. 281); Hunsinger v. Hofer, 110 Ind. 390 (14 N. E. 463); Farnsworth v. Bell, 5 Sneed, 532, footnote.

5. To enable a creditor herein to maintain a suit to set aside a conveyance by the debtor as fraudulent and void,, he must show an unsatisfied judgment or an attachment upon a cause of action existing at the time of the conveyance (Dawson v. Sims, 14 Or. 561, 13 Pac. 506; Clark v. Anthony, 31 Ark. 546); or on a cause of action arising subsequent thereto, and that in the latter event the conveyance was made with the express intention of defrauding subsequent creditors : Crawford v. Beard, 12 Or. 447 (8 Pac. 537); Bennett v. Minott, 28 Or. 339 (39 Pac. 997, 44 Pac. 288); Morton v. Denham, 39 Or. 227 (64 Pac. 384.)

6. A voluntary conveyance of property is constructively void as to existing creditors (Elfelt v. Hinch, 5 Or. 255; Davis v. Davis, 20 Or. 78, 25 Pac. 140; Flynn v. Baisley, 35 Or. 268, 57 Pac. 908, 45 L. R. A. 645, 76 Am. St. Rep. 495); but valid as to subsequent ones, unless impeached for actual fraud: 14 Am. & Eng. Enc. Law (2 ed.), 309; Hagerman v. Buchanan, 45 N. J. Eq. 292 (17 Atl. 946, 14 Am. St. Rep. 732).

7. Now, in this case the cause of action upon which Jennings recovered judgment against Seed, as shown by the record in such action, did not exist at the time of the conveyance by Seed to his son, nor for some time thereafter. The record consists alone of the complaint, the order of default and the judgment. The complaint was filed July 11,1904, and charges an overt act, committed on July Sth, previous, and that prior to the filing of the complaint, and “particularly within the last year,” Seed had insinuated *469himself into the favor and good graces of Jennings’ wife, alienating her affections ; but there is no charge that this wrongdoing commenced prior to the date of the conveyance in question. To avoid a voluntary deed because fraudulentas to existing creditors, the cause of action must exist at the time the conveyance is made, and this must appear from the record in theactionin which the judgment was recovered (The Holladay Case, C. C., 27 Fed. 830; Goodnoq v. Smith, 97 Mass. 69), so that the evidence does not disclose that Jennings is entitled to have the deed set aside because the judgment recovered by him against Seed was on a cause of action existing at the time the conveyance was made.

8. Nor is there sufficient evidence to show that the deed was made for the purpose of hindering, delaying, or defrauding Jennings in the collection of any judgment he might recover against Seed on account of his subsequent conduct or to defraud anj^ of Seed’s creditors. There is no evidence that Seed was in debt in any sum at the time, nor that he has since become indebted or liable in any amount except on the- judgment Jennings recovered in September, 1904. There is no testimony in the record showing or tending to show any improper conduct between. Seed and Mrs. Jennings except the allegations of the complaint in the action brought by Jennings, which was taken as confessed and the testimony of plaintiff elicited on cross-examination, to the effect that a few days before the deed was made he and his mother saw Seed and Mrs. Jennings come out of a down-town building at about 11 o’clock at night, and that a personal encounter ensued between the two women and that he (witness) had seen his father and Mrs. Jennings together at the theatre, and out riding several times prior to that date. This is perhaps sufficient to show improper conduct by Seed and Mrs. Jennings, but there is no evidence that Seed anticipated an action by *470Jennings on account thereof, or that he had any reason for putting his property out of his hands on that account.

It follows that upon the record before us the decree of the court below must be reversed, and one entered herein favor of plaintiff. . Reversed.