Tryon v. Palmer

COSHOW, J. The Circuit Court did not abuse its discretion in denying appellant the privilege of reopening the case to take testimony of the witnesses in Portland. The testimony of those witnesses was not competent except for the purpose of impeaching the general character and reputation of .defendant A. H. Hinkson. The judge who presided at the trial had the benefit of seeing, hearing and observing the manner of the witnesses as they gave their testimony. Whether or not the case should be opened after it has been closed and additional testimony taken is in the discretion of the trial court: Riverside Cement Co. v. Masson, 69 Or. 502 (139 Pac. 723, Ann. Cas. 1916A, 127). If all of the witnesses named in the affidavit of appellant whose testimony she desired to take had testified as she believed they would testify, their testimony would not, in our opinion, have changed the result. We do not believe the testimony of defendant A. H. Hinkson strengthened plaintiff’s case. Appellant admits that she signed the deed executed and delivered for the purpose of securing the *665 sum of $4,000 borrowed from plaintiff by defendant A. H. Hinkson. She does not adduce any testimony that tends to connect plaintiff with any fraud, either in loaning the money or procuring the deed. Granting that her then husband, defendant A. H. Hinkson, misrepresented, the facts to her and in that manner secured her signature and acknowledgment to the deed, she is still bound by the deed, unless she had gone further and proved that plaintiff was guilty of defrauding her in that regard. We have been unable to find any testimony that tends to show that plaintiff knew anything about any misrepresentations made by defendant A. H. Hinkson to appellant. There is no attempt to dispute the loaning of the full sum of $4,000 .by plaintiff' to defendant A. H. Hinkson. Plaintiff’s assignor took a warranty deed from defendants Hinkson covenanting against encumbrances. At the time said deed was delivered the premises described therein were encumbered with a mortgage to secure the principal sum of $1,800. Plaintiff did not discover the mortgage until some time after he had accepted the deed. After discovering that the premises involved in this litigation were encumbered with a mortgage to secure the sum of $1,800, plaintiff’s assignor sought to have said mortgage indebtedness paid by the plaintiff A. H. Hinkson and succeeded in getting $1,000 paid thereon. Plaintiff’s assignor also secured from defendants Hinkson three deeds for separate tracts of land as additional security. These tracts were supposed to be owned by said A. H. Hinkson. It developed that said defendant A. H. Hinkson either did not have title to the land covered by the last three mentioned deeds or that his title thereto was encumbered with judgments and other liens so that the said three deeds were not in fact or *666 in truth security for any sum whatever. For that reason plaintiff abandoned all claim to them. It is claimed by appellant that by reason of abandoning his claim to said three separate tracts he thereby released appellant whose twenty-acre tract of land was security for the loan to defendant A. H. Hinkson. Appellant is not entitled to avail herself of that defense because she has not pleaded it. Her answer in that regard is that plaintiff received the three separate tracts aforesaid and still retained them and for that reason it was not equitable for him to foreclose against plaintiff’s twenty-acre tract. In order to avail herself of the defense that her land was released from the lien of the deed she should have pleaded it: 32 Cyc. 149; Gray v. Holland, 9 Or. 512. Plaintiff did not demand a personal judgment against appellant. The court did not render a personal judgment against her. She admits that she executed the deed as security. Her contention is that it was for the purpose of releasing the mortgage for $1,800, which was against the premises when she purchased them. Her belief in this regard was not communicated to plaintiff’s assignor. Nothing is demanded of appellant by plaintiff or required of her by the decree, except by virtue of the deed which she admits to have executed. We believe that the testimony, by a great preponderance, favors the plaintiff. If there was doubt as to that, however, the ability, learning and long experience of the judge presiding at the trial would justify affirming the decree because of the advantage he had in hearing, observing and seeing the witnesses while giving their testimony. We find no error and the decree is affirmed. Neither party will recover costs. Affirmed.