Calavan v. Bowen

Mr. Justice McBride delivered the opinion of the court. 1. We think the testimony fully establishes the fact that the sale was made with the fraudulent intent on [301] the part of L. Q. Bower to prevent plaintiff from collecting any judgment she might obtain against him. It was made after the proceedings were begun, and shortly before the judgment was rendered, and taken in connection with the sale of all the other property a few days before, and with the fact that he insisted on being paid in paper money, which is easily carried on the person, and the further fact that soon thereafter he left the country and remained absent, satisfy us fully of his fraudulent intent. 2. This being established and the relationship of the parties being admitted, the burden of proof was upon I. L. Bower to prove affirmatively, by the preponderance of evidence, that he was a bona fide purchaser for value, without notice . of the fraudulent intent of his father, the grantor. Whatever may be the rule in other jurisdictions, it is established in this State by a long series of decisions that, where the conveyance is from a near relative, whose fraudulent intent is shown, the relationship creates such a presumption of knowledge of that fraudulent intent on the part of the grantee as to place the burden of proof of a bona fide purchase upon him. See Robson v. Hamilton, 41 Or. 239 (69 Pac. 651), where all the decisions of this court are collated. The holding in these cases is reiterated in Stubling v. Wilson, 50 Or. 282 (90 Pac. 1011: 92 Pac. 810), and is now 'the settled rule in this State. 3. While we are satisfied from the testimony, which we shall not recount in detail, that I. L. Bower paid something near an adequate price for the lands, we do not think he has overcome the presumption raised by his relationship that he knew of his father’s fraudulent intent. In the first place, the purchase took place after he had been informed of the pendency of the suit, and after he had information that his father had sold all his other property. It is in evidence that about the [302] time of the purchase, whether immediately before or after seems uncertain, a neighbor suggested to him that, on account of the suit, he might get into trouble and lose some money, and that he replied, “There has been no injunction; nothing to prevent the sale,” which indicates that he had been giving more attention to the legal consequences of the transaction than is common among farmers. Added to this is the fact that his father insisted on being paid in paper money at the bank, and that he himself had drawn, and had on hand outside the money checked from the bank, $800 in paper money, which he paid his father. This indicates to us that he was assisting him to turn his property into a kind of currency that could be easily carried in large sums about the person in case of flight. The unwillingness of the average person in the northwest to receive large quantities of currency is a matter of common knowledge. It is true that he says he had drawn the $800 of currency for the purpose of a contemplated trip to Alberta, but he did not know whether he would go, or exactly when he would go. That he would carry this money about him for some time, when he had an account at the bank and was a frequent depositor of large sums, is such unusual conduct as to throw suspicion upon this part of his testimony. The circuit judge had all the witnesses before him and heard their testimony personally, and, in cases of this character, he is better qualified to judge of the value and effect of the evidence than we, who only have it in cold type; but, as it is, we think the decree was justified by the evidence, and it is affirmed. Affirmed.