Sabin v. Kyniston

Mr. Justice Burnett delivered the opinion of the court. 1-3. It is well settled that it is not essentially requisite that there he direct proof of fraud. Indeed, this is generally impracticable, and the deceit necessary to impeach a conveyance may be proven by circumstantial evidence: Elfelt v. Hinch, 5 Or. 255; Williamson v. North Pac. Lbr. Co., 42 Or. 153 (70 Pac. 387, 532); Kabat v. Moore, 48 Or. 191 (85 Pac. 506); Phipps v. Willis, 53 Or. 190 (96 Pac. 866, 99 Pac. 935, 18 Ann. Cas. 119). On the other hand, it is a legal platitude to say that he who alleges fraud or any other material matter which is denied must prove the same according to his averment. It has been established by precedents in this state that three things concurring will protect the title of the purchaser: (1) He must buy without knowledge of the bad intent on the part of the vendor; (2) he must be a purchaser for a valuable consideration; and (3) he must have paid the purchase money before he had notice of the fraud. It is provided by Section 7397, L. O. L., that every conveyance of any estate or interest in lands made with the intent to hinder, delay or defraud creditors or other persons of their lawful suits or demands as against the person so hindered, delayed or defrauded shall be void. The effect of this is limited by two sections reading thus: Section 7400: “The question of fraudulent intent in all cases arising under the provisions of this chapter shall be deemed a question of fact, and not of law.” Section 7401: “The provisions of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.” — 362 — 4-8. Under the latter, one of the essentials which the plaintiff must establish is that the purchaser had previous notice of the fraudulent intent of his grantor. On this point, it is conceded that the judgment of the United States court was not docketed in Wasco County, where the land was situated, until long after the conveyance from Kyniston to Patton. Sections 210, 211 and 212, L. O. L., cover this subject permitting such docketing, and prescribing that from the date thereof the judgment shall be a lien upon the real property of the defendant within the county where the same is docketed. For want of compliance with this section there was no imputed notice to Patton of the determination of the cause in the United States court. There is utterly no evidence to show that he had any knowledge that Kyniston was indebted or obligated in any manner whatever to the plaintiff. There is some slight testimony that there was a rumor current among' the farmers in the neighborhood where the property was situated to the effect that Kyniston had been sued, but at the time Patton resided in The Dalles several miles distant, and no knowledge even of this rumor is imputed to him by any witness. In Coolidge v. Heneky, 11 Or. 327 (8 Pac. 281), it was decided that notice of the fraudulent intent of a grantor in cases of this sort must be actual. It is true enough that this may be proven by circumstantial evidence, but there are no circumstances disclosed by the witnesses tending to charge Patton with the necessary knowledge of the deceit, if any, practiced by his codefendant. 9,10. We pass to the inquiry of whether Patton paid a valuable consideration for the land. To establish his case the plaintiff called as his first witness the defendant Patton himself, thus representing him to be worthy of credit, or at least not so infamous as to be — 363 — wholly unworthy of it: State v. Steeves, 29 Or. 85, 103 (43 Pac. 947); Greenleaf states it thus: “When a party offers a witness in proof of his cause, he thereby in general represents him as worthy of belief”: 1 Greenl. Ev. (16 ed.), § 442. The testimony of Patton is to the effect that on Sunday, May 17th, Kyniston visited him and offered the land for sale subject to a mortgage for one thousand dollars in favor of the state land board with accrued interest, pricing it at the sum of one thousand dollars additional, and the balance of unpaid taxes amounting to $26.31; and that he accepted the offer. He said he had in his possession six hundred dollars belonging to his son which the latter had earned from time to time and left in his keeping, together with ninety dollars of his own, all of which he kept in a can buried sometimes in a cellar and sometimes in a woodshed at the various places where he had lived in Wasco County; that he paid this amount to Kyniston on the Sunday mentioned, taking his receipt for the same which, at the time he testified, had been lost and could not be produced; that the following morning he went to the office of an attorney where the deed was prepared and signed by Kyniston; that he then paid him $210. The remainder of the consideration was one hundred dollars which he had previously loaned to Kyniston, making a total of one thousand dollars. An attempt was made to discredit his testimony by showing that when he was working for a farmer, plowing a 92-acre tract for $1.50 an acre, he drew his money substantially as fast as he earned it; that once he owed his landlord $6 for a month’s house rent and paid it by cutting wood, that in another instance he was compelled to ask credit for $16.81 to buy feed for his team while he was cultivating rented land; and, — 364 — finally, that shortly prior to the transaction in question he borrowed one hundred dollars .and gave a chattel mortgage on his team to secure its payment. These matters are satisfactorily explained by Patton’s statement to the effect that at the time he was plowing he did not have ready cash and was compelled to use the money from time to time; that he did not have available funds when he owed the house rent, and, not having any work on hand, made the turn by cutting wood; and, lastly, that his wife was afflicted with cancer and he had borrowed one hundred dollars for the purpose of sending her to California for treatment, which plan she abandoned. The son testified that for practically four years he had been earning money which, from time to time, he gave to his father for safekeeping, and that it was with his consent that his parent used the money to make the initial payment to Kyniston. The latter testified to receiving the money as stated by Patton; and, finally, the scrivener, who prepared the deed and took the acknowledgment, declared that at that time he saw quite a sum of money in gold, .estimated by him to be two hundred dollars or three hundred dollars, pass from Patton to Kyniston as part of the transaction. Some unimportant discrepancies between the testimony of Patton and of Kyniston are pointed out as discrediting their statements. For instance, the former said that the subject of the transfer of the land had not been broached between them until the stated Sunday, while the latter declared that he had several times before then interviewed Patton on the subject. This circumstance, together with the fact that the greater part of the purchase money was paid before the execution of the deed, that no abstract was required or examination of the title made, and that for — 365 — a long period of time the money was kept buried in a can about the house instead of being deposited in a bank, gives an apocryphal flavor to the stories of the witnesses. On the other hand, there is nothing whatever to dispute them. The plaintiff has vouched for the credibility of Patton and, while the transaction may not have been carried on by a farm laborer, as Patton was disclosed to be, with the same precaution that would characterize a similar affair conducted by well-trained business men, the testimony clearly preponderates in favor of the defendants. The case is governed by such precedents as Phipps v. Willis, 53 Or. 190 (96 Pac. 866, 99 Pac. 935, 18 Ann. Cas. 119); Ball v. Danton, 64 Or. 184 (129 Pac. 1032); Coffey v. Scott, 66 Or. 465 (135 Pac. 88); Coolidge v. Oberlin, 66 Or. 563 (135 Pac. 167); Lane v. Myers, 70 Or. 376 (141 Pac. 1022, Ann. Cas. 1915D, 649). In brief, there is nothing to show that Patton had any notice whatever that Kyniston intended to defraud anyone. It is established at least by the greater weight of testimony that he paid a valuable consideration for the land and that, too, before he had any notice either actual or imputed of any possible fraud on the part of his codefendant. The criticisms of the statements of the witnesses are not sufficient entirely to discredit them, especially where the veracity of the defendant Patton was indorsed by the plaintiff when he called him as a witness. We deem it unnecessary to consider the question urged by the defendants to the effect that without an allegation in the body of the complaint stating his appointment as trustee, words of that kind in the title are mere descriptio personae, so that the plaintiff is suing in his private capacity while the proof shows he is entitled to recover, if at all, only in the character of a representative. — 366 — The decree of the Circuit Court was right, and must he affirmed. Affirmed. Mr. Justice Eakin took no part in the consideration of this case.