Brown v. Whittington

Mr. Chief Justice Bean, after stating the facts, delivered the opinion of the court. 1. It is insisted at the outset that the plaintiffs can not recover, because the complaint admits that the note upon which judgment against Whittington and Shull was recovered by Brown was paid in full b,y Shull before the commencement of the action thereon. But this contention is not supported either by the allegations or the proof. The complaint alleges that prior to the commencement of the action Shull gave Brown sufficient money to satisfy the note, with the understanding and agreement that it should not be considered as a payment, but that Brown should prosecute an action. thereon in his own name, at the expense and'for the use and benefit of Shull; and the testimony is to the same effect. This was no more than Shull could have compelled Brown to do. Mr. Brandt says : “ It is settled by a long-continued and unvarying current of authorities that the surety may, by a suit in chancery, after the debt becomes due, and before he pays it, compel the creditor to proceed to collect the debt from the principal, provided he indemnify the creditor against loss from a fruitless suit against the principal”: 1 Brandt, Sur. (2 ed.), § 238. See, also, 24 Am. & Eng. Ency. Law (1 ed.), 798. [303] 2. The remaining issue involve mere questions of fact, and a detailed discussion of the testimony is unnecessary. It is sufficient that, after careful examination, we are of the opinion that the conclusions of the court below are abundantly supported by the evidence. The conveyance from Whittington to his wife, made at the time and under the circumstances stated, imposed upon the defandants the burden of showing that it was made in good faith, and for a valuable consideration (8 Am. & Eng. Ency. Law (1 ed.), 765; Wait, Fraud. Conv. (3 ed.), § 301; Marks v. Crow, 14 Or. 382 (13 Pac. 55); Bank of Colfax v. Richardson, 34 Or. 518 (75 Am. St. Rep. 664, 54 Pac. 359); Horton v. Dewey, 53 Wis. 410, 10 N. W. 599); and this they have failed to do. The contention is that in 1888 Mrs. Whittington was the owner of a farm in Jackson County, which she sold for $3,000, and that the proceeds thereof were invested in the land in controversy. The Jackson County land was deeded to Mrs. Whittington by her husband, without consideration ; whether as a gift or for other purposes is not clear from the testimony. Indeed, the testimony in reference to the entire transaction is indefinite and unsatisfactory. But, whatever may have been the real fact in reference to the matter, the Coos County land was purchased by Whittington, and the title taken in his own name. He was afterwards allowed and permitted to sell a portion thereof, mortgage the remainder, and otherwise deal with it as his own, until after one of his neighbors, relying on the apparent fact that he was the owner, became surety for him on the note to Brown. It would be manifestly inequitable and unjust under such circumstances to permit the conveyance, as against such surety, to stand, unless clearly shown by the evidence to have been made and received in good faith. The contention is also made that at the time Shull [304] became surety for Whittington he took a deed to the Myrtle Point lot, with the understanding and agreement that, if Whittington did not pay the note at maturity, he would keep the lot, and make the payment himself. But this position is not supported by the testimony. Brown, Shull, and Phillips — all the parties present at the execution of the note and deed except Whittington — testify that no such agreement was made or understanding had. Their testimony is, in effect, that Shull refused to accept the deed to the lot; and the latter says that it was never delivered to him, but that Brown caused it to be placed of record. On Aügust 5, 1893, Shull, acting under the advice of an attorney, made and forwarded to Whittington a deed purporting to rceonvey the lot to him, and Whittington has ever since retained the same. It is also suggested that, even if the convejmnce from Whittington to his wife was voluntary, and without consideration, it is not void, because he was solvent at the time. But the evidence shows that it practically conveyed all his property. What little, if any, he may have retained, consisted of a few head of stock and his interest in the Myrtle Point lot. It follows from these views that the deed from Whittington to his wife is void as to the plaintiffs, and must be set aside. But, since the plaintiffs have offered in their complaint to permit the defendants to redeem from the effects of the sheriff’s sale as if the time allowed by law for the redemption had not expired, a decree will be entered allowing them sixty days from the entry of the mandate in the court below in which to do so. Affirmed.