165 P. 221 | Or. | 1917
delivered the opinion of the court.
Appellant’s explanation of the execution of the deed in controversy is that plaintiff sought an interview with her on the morning of September 6, 1915; that he expressed a desire that appellant should have all of the property involved in the partition suit, stating that he had not treated her' properly during their married life. She claims that the deed was executed pursuant to this understanding, and' that plaintiff thoroughly understood its import. Plaintiff claims that an arrangement was entered into between the parties on this same day for the settlement of the partition suit, appellant to take two houses, including the one in which the parties had been living, and plaintiff to take the remainder of the property. Plaintiff testifies that he suggested that the parties should go over to the hank in Haines and execute the necessary deeds; that appellant refused to do this, insisting that the papers should he made out by her attorney at La Grande; that on the following day the parties went to La Grande and that appellant fraudulently prepared a deed covering all of the property involved in the partition suit, the household furniture and effects, and
The deed recites a consideration of $1 and other valuable considerations. Appellant contends that this recital is binding on plaintiff, and that evidence is not admissible for the purpose of showing that the conveyance was executed without consideration. In support of this contention the case of Finlayson v. Finlayson, 17 Or. 347 (21 Pac. 57, 11 Am. St. Rep. 836, 3 L. R. A. 801), is cited. If this case sustains the contention of appellant in this regard, it must be deemed to be overruled by the later decisions of Velten v. Carmack, 23 Or. 282, 288 (31 Pac. 658, 20 L. R. A. 101), and North American Securities Co. v. Cole, 61 Or. 1, 6 (118 Pac. 1032). These later decisions establish the principle that where a deed is attacked on the ground of fraud or imposition the recital of a consideration therein is only prima facie evidence that the consideration has in fact been paid. A fraudulent grantee, in other words, cannot tie the hands of a court of equity by inserting in the deed such a recital contrary to the fact. This we understand to be the rule in other jurisdictions: 13 Cyc. 614; 17 Cyc. 651, 652, and cases cited. In this case there is no contention that a consideration was given plaintiff for the property described in the deed. The evidence indicates, that the property was worth in the neighborhood of $6,000. Where property is conveyed without con
We also think that the evidence sustains plaintiff’s contentions as to fraud and imposition. It appears by an overwhelming preponderance of the testimony that plaintiff for many years had been a drinking man; that his marital troubles drove him to excessive drinking-in the summer of 1915; that he was under the influence of liquor more or less for a number of months at that time, and that by the 7th of September his system was so poisoned with alcohol as to make him an easy prey to the avarice of appellant. While appellant testifies that she saw but little of plaintiff during the summer of 1915, her testimony in this respect, as in other respects, is unbelievable. The parties were living at that time in the same house in the village of Haines. Appellant must have seen plaintiff every day, and must have been fully apprised of his habits and the mental condition arising therefrom. Appellant cites 17 Am. & Eng. Enc. of Law (2 ed.), 401. In'this authority the following principle is announced:
“Where a person seeks to avoid responsibility for a contract on the ground of intoxication alone, it must appear that the drunkenness was so excessive that he was utterly deprived of the use of his reason and understanding, and was altogether incapable of knowing the effect of what he was doing. ’ ’
“It should be noted, however, that complete intoxication is necessary only when the contract is sought to be avoided on the ground of mental incapacity. Where the avoidance is sought on the ground of fraud, even partial intoxication may be sufficient if it was brought ábout by the act or connivance of the other party or if an undue advantage was taken of the intoxicated person”: 6 E. C. L. 598.
We think this case is clearly one wherein appellant took advantage of an intoxicated person, pursuant to
Inadequacy of consideration may be so gross as to shock the conscience and in such case equity will seize on slight circumstances of fraud and oppression as a ground for setting aside the transaction: 4 R. C. L. 501; Archer v. Lapp, 12 Or. 196, 202 (6 Pac. 672); Sherman v. Glick, 71 Or. 451, 461 (142 Pac. 606). This principle is applicable to a transfer of property without any consideration to support it, where the relations of the parties preclude the conclusion that a gift was intended. The evidence clearly shows that plaintiff remained ignorant of the contents and effect of this deed for months after its execution.
There are other circumstances in the record which strongly tend to prove appellant’s bad faith. Although plaintiff’s automobile was transferred to appellant by the deed in question plaintiff continued to use the automobile for approximately two months after the execution of the deed. At the end of that time appellant drove the automobile to La Grande and executed a bill of sale thereof in favor of her attorney. The testimony on appellant’s behalf is that the bill of sale was given to secure a fee of $75 which she owed her attorney, but it also appears that appellant was in funds and able to pay any debt of that size which she owed; also that her attorney was advised of her circumstances and knew that she was solvent and that any claim he had against her was good without security.
We are satisfied from the evidence that the deed executed by appellant in favor of the defendant Olsen was executed with intent to put the property out of the reach of plaintiff. It appears that the deed was antedated, and the circumstances suggest that it was exe
Appellant’s effort to cover up the property and thus to deprive plaintiff of his remedy discredits appellant’s contentions. The evidence amply sustains the findings and conclusions of the lower court. The decree of the lower court is affirmed. Affirmed,