169 P. 775 | Or. | 1918
Lead Opinion
The parties stipulated that S. E. Brady should be deemed to have testified that he signed his application and an assignment of his rights thereunder at the instance of a stranger for a consideration of one dollar. The application was made for the benefit of someone else, he paid no párt of the purchase price to the state, signed no notes and never appeared before a notary for any purpose.
The agent of the defendants Hyde and Schneider who secured these applications corroborated the above testimony. It clearly appears that these applications were not made for the benefit of the applicants, but that they were secured for the benefit of Hyde.
The testimony of C. H. Ford as to the circumstances under which he made his application is meager, but he does testify that he received five dollars for signing the application and the assignment of his rights thereunder and that both papers were signed at the same time. His application is dated August 11, 1898, and his assignment to A. S. Baldwin, August 15th of the same
“Fraud is never presumed except there be facts shown from which it can be inferred. It does not rest on mere suspicion. The precept is that one is not permitted to give weight to smoke and suspicion is but smoke.”
In Shebley v. Quatman, 66 Or. 441, 448 (134 Pac. 68), Mr. Chief Justice McBride says:
“Courts will not presume fraud and will not find fraud except upon clear and satisfactory testimony.”
Other Oregon decisions are to the same effect: Coffey v. Scott, 66 Or. 465, 468 (135 Pac. 88); Waymire v. Shipley, 52 Or. 464, 470 (97 Pac. 807); Scott v. White, 50 Or. 111, 114 (91 Pac. 487). Plaintiff must therefore fail as to the property covered by this application.
The state’s judgment for costs will run only against the defendant Hyde in both courts.
It follows that the decree of the lower court is reversed. A decree will be entered here adjudging that plaintiff is the owner of the south half of the southeast quarter, the northwest quarter of the southeast quarter, and the southwest quarter of section 36, township 1 south, range 10 east; the northwest quarter of section 36, township 1 south, range 8 east; and the west half of section 36, township 2 south, range 10 east of the Willamette Meridian. The state deeds to these properties are canceled.
The suit is dismissed with prejudice as to the east half of section 36, township 2 south, range 10 east, and is dismissed without prejudice as to the east half of section 36, township 1 south, range 8 east of the Willamette Meridian.
Reversed in Part. Modified in Part. Further Modified and Rehearing Denied.
Modified as to description and rehearing denied March 19, 1918.
Rehearing
Petition for Rehearing.
(171 Pac. 583.)
On petition for rehearing and motion for modification. Former opinion modified as to description only.
Mr. A. C. Shaw, for the petition and motion.
Mr. George M. Brown, Attorney General, and Mr. John 0. Bailey, Assistant Attorney General, contra.
In Banc.
Counsel have pointed out a number of errors in the former opinion for which the
In correction of this and other errors, the decree should provide for the dismissal of this suit without prejudice as to the southeast quarter of section 36, township 1 south, range 8 east, and the dismissal with prejudice as to the east half of section 36, township 2 south, range 10 east. The state deeds should be canceled and plaintiff adjudged to be the owner of the north half of section 36, township 1 south, range 10 east; section 16, township 1 south, range 10 east; the west half of section 36, township 2 south, range 10 east, and the southwest quarter, the northwest quarter of the southeast quarter and the south half of the southeast quarter of section 36, township 1 south, range 10 east.
The former opinion, when modified as above, is adhered to. ' Modified and Beheading Denied.