Toney v. Toney
165 P. 221
Or.
1917
Check Treatment
Mr. Justice McCamant

delivered the opinion of the court.

Aрpellant’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 аll 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 impоrt. 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 rеfused 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 covеring all of the property involved in the partition suit, the household furniture and effects, and *314plaintiff’s automobile as well. Plaintiff further claims that while he was under the influence of liquor he was induced to sign the deed without reading it, under the belief induced by appellant that the deed was operative merely to convey to appellant that portion of the real property which she was to receive under the verbаl agreement entered into for the settlement of the partition suit.

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 prоperty described in the deed. The evidence indicates, that the property was worth in the neighborhood of $6,000. Where property is conveyed without con*315sideration and the circumstances unequivocаlly rehut the presumption of a gift, equity will charge the grantee with a resulting trust in favor of the grantor: Bennett v. Huston, 33 Ark. 762; Giffen v. Taylor, 139 Ind. 573 (37 N. E. 392); Myers v. Jackson, 135 Ind. 136 (34 N. E. 810, 812); Lingenfelter v. Ritchey, 58 Pa. St. 485 (98 Am. Dec. 308); McDermith v. Voorhees, 16 Colo. 402 (27 Pac. 250, 25 Am. St. Rep. 286). This court is committed to a doctrine closely approaching ‍‌‌‌​‌‌​‌​​​​‌‌​‌​‌‌​‌‌‌‌​​‌‌‌‌​‌‌​​​‌‌‌‌‌​​‌‌​​‌‍that announced in the foregoing authorities: Gray v. Beard, 66 Or. 59, 68 (133 Pac. 791). Do the circumstances of this case clearly rebut the presumption that plaintiff intended to give the property in dispute to appellant? It appears from the testimony that both plaintiff and appellаnt had been previously married; that their married life was infelicitous; that the divorce suit was contested; that during the pendency of the suit plaintiff was obliged by the court to provide appellant with suit money; that immediately after the divorce decree appellant sued out execution thereon and compelled plaintiff to pay the money adjudged to be due her with accruing costs. The partition suit seems tо have been brought by appellant without any effort to divide the property amicably. These facts would seem to preclude any contention that the relations between the parties were cоrdial at the time when the deed was executed in appellant’s favor. The antagonistic relations of the parties are further emphasized by circumstances which transpired subsequently. In December, 1915, on the maturity of a note for $600 which plaintiff had given appellant, she assigned the note to one E. C. Tuckey, brought action thereon in Tuckey’s name and attached an interest which plaintiff had in a millinery store. Thereаfter appellant seized some clothing and personal *316effects belonging to plaintiff, and to which appellant had no claim of any kind. She carried this property with her to Spokane, and demandеd that plaintiff should pay her $50 as a consideration for its return to him. We have no hesitation in saying that the evidence in the case at bar forecloses any contention that plaintiff intended to present аppellant with the property described in this deed. In so far as the case involves the real property, we think it clear that the decree of the lower court can be upheld under the doctrine оf a resulting trust.

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 unbelievablе. 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. Apрellant 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 appeаr 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. ’ ’

*317This authority was called to thе attention of this court in the case of Fagan v. Wiley, 49 Or. 480, 484. (90 Pac. 910). While the rule announced in the Encyclopedia was accepted as a correct statement of the law, it was also held in the above case that where a party under the influence of liquor purchases property at an exorbitant price the burden devolves on the vendor of showing the perfect good faith of the transaction. In this case we аre dealing with a conveyance wholly without consideration. While the evidence fails to show that plaintiff was utterly deprived of the use of his reason and understanding at the time when he executed the deed, it dоes show that he was broken both mentally and physically as the result of continued excessive indulgence in drink. It appears that he had been drinking for an hour at Haines before he went with appellant to La Grande to execute the deed, and that while the deed was being prepared he was drinking mixed drinks in a saloon in La Grande. It further appears that when he returned to Haines after executing the deed later on the same day he was visibly intoxicated. The principle cited in the Encyclopedia of Law is also announced in Euling Case Law. It is qualified, however, by the following language:

“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 intoxicatiоn 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 appellаnt took advantage of an intoxicated person, pursuant to *318a design to despoil him of substantially all he had in the world.

Inadequacy of consideration may be so gross as to shock the consciencе 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 cоnsideration 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 effеct 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 alsо 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 hе 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*319cuted immediately after plaintiff received her copy of the summons and complaint in this case. Her explanation of the transaction is unbelievable and the ingenuity of her counsel has been able to suggest nothing which can account for this deed on any other theory than that abovе suggested.

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,