74 P. 705 | Or. | 1903
after stating the facts in the foregoing terms, delivered the opinion of the court.
The plaintiff wras then permitted, over objection and exception, to introduce in evidence a certified copy of Harold’s petition praying for the appointment of R. G. Keene as- administrator of the estate of Parmelia Howard, deceased, filed in the county court of Marion County, and stating that his mother-in-law died intestate in that county January 23, 1893, and leaving an estate therein ; a certified copy of the order of that court appointing Keene, and also a certified copy of another petition filed by Harold in the matter of that estate, averring that on September 30, 1891, he gave to the deceased his promissory note for $1,200, payable on or before five yeai’s, with interest at 8 per cent; a copy thereof being set out, upon which the following indorsement purports to have been made : “Interest paid to date, September 30th, 1892, and eight hundred dollars, $800, within note.” It is also stated in the
The testimony shows that after the land was conveyed to Mrs. Harold she borrowed $1,000 from W. H. Hobson, giving him as security therefor a mortgage on the premises, and with the money so received she discharged the Keene mortgage, and had paid the interest on the Caldwell mortgage for $800 which had been assigned to Hob-son. Notwithstanding we conclude that she had actual knowledge of, and was a party to, her husband’s fraudulent intent, we believe she is entitled to the security assigned to her by her mother, on the assumption that a court of equity should not punish her by decreeing a recovery in excess of the value of the interest transferred: Baldwin v. June, 68 Hun, 284 (22 N. Y. Supp. 852); Hamilton Nat. Bank v. Halsted, 134 N. Y. 520 (31 N. E. 900, 30 Am. St. Rep. 693). True, Mrs. Harold, by executing a mortgage to Hobson, augmented the incumbrances on the land to the extent of $400; but plaintiff’s counsel on September 18, 1893, knew the contents of her husband’s petition to cancel Mrs. Howard’s mortgage, but made no effort to set aside his deed until January 4, 1902, when this suit was instituted for that purpose. Such delay ought not to be rewarded, and hence Mrs. Harold will not be charged with the money so received from Hobson, on the assumption that she used it in improving the land, thereby enhancing its value.
The decree of the court below will therefore be reversed, and one entered here making plaintiff’s judgment a lien upon the land in question, subordinate, however, to the liens of the Caldwell and Hobson mortgages, foreclosing the equitable lien of Mrs. Harold’s mortgage, directing a sale of the premises, subject to the prior liens of the Caldwell and Hobson mortgages, and from the money arising from such sale there be paid, first, the costs and disbursements of this suit, and the expenses of such sale; second, the sum of $400 to Mrs. Harold, and interest thereon at 8 per cent from January 5, 1892; third, the amount of plaintiff’s judgment, interest, attorney’s fees, costs, and disbursements; and, fourth, the remainder, if any, to Mrs. Harold. Reversed.