Summary
Defendant appeals.
This cause comes here on appeal from a decree of the circuit court of Union county in favor of the plaintiff and against the appellant requiring him to convey an undivided one-third of the land in controversy to the plaintiff within thirty days, or in default of such conveyance that the decree stand in lieu thereof and operate as such conveyance.
The grounds upon which the court below proceeded in making this decree appear in the findings of the referee, which are as follows:
1. That Andrew Dray died intestate in Union county, Oregon, on the nineteenth day of May, 1887, leaving real estate and personal property in Union county and real estate in Washington county, Oregon. (Here follows a description of said real property not necessary to be here reproduced.)
2. That plaintiff Henry 0. Dray, defendant J. W. Dray, and S. A. Dray are the only heirs at law of Andrew Dray, deceased, and are all over the age of twenty-one years, and brothers.
8. That said real estate was encumbered by mortgage at the time of the death of said Andrew Dray to the amount of about $1,200.
4. That there were other debts of said deceased at the time of his death amounting to the sum of $300, and some personal property of said estate of the value of about the sum of $1,400.
5. That about the twentieth day of August, 1887, defendant J. W. Dray was appointed administrator of the estate of Andrew Dray, deceased, by the county court of Union county, Oregon, and was such administrator thereafter until the month of June, 1889.
6. That on the twelfth day of April, 1888, plaintiff Henry Dray executed to the defendant J. W. Dray a quitclaim deed releasing to the defendant all the right, title and interest of the plaintiff in the said real property, to wit: The undivided one-third interest in the property described in finding No. 1 hereof, which deed has a habendum clause in the following words: “To have and to hold the same together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, forever.”
7. That said deed was not delivered by Henry C. Dray to defendant J. W. Dray until about the twenty-eighth day of May, 1888.
8. That the consideration of said deed expressed on the face thereof was the sum of $500, the receipt whereof is, by the terms of said deed, duly acknowledged.
9. That in fact there was no pecuniary consideration paid therefor by the defendant, but the actual consideration and inducement therefor was as follows:
10. That on January 2, 1888, all the right, title and interest of plaintiff Henry C. Dray in and to the real property of the estate of Andrew Dray, deceased, which was situated in Union county, was sold upon execution issued out of the circuit court of Union county in the case of J. B. Worster v. Henry 0. Dray, in the sum of $1,170.96, to J. W. Shelton for the sum of $450; and that on or about the same time the portion of said land situated in Washington county was sold on a like execution on said judgment to the same purchaser for the sum of $950; that the said sale of the property situated in Union county was thereafter, on February 20,1888, duly confirmed by said circuit court of Union county, and about the same time the sale of the real estate situated in Washington county was also confirmed.
11. That during the spring of the year 1888 plaintiff was attempting to procure money upon his interest in the real estate of A. Dray, deceased, by mortgage or otherwise, for the purpose of redeeming said real estate from said execution sales, and did obtain offers of such a loan on condition that the debts of said estate be paid and the administration discharged.
12. That the defendant J. W. Dray disapproved of plaintiff’s getting the money, and represented to the plaintiff that it would he less dangerous to the plaintiff’s interests and less expense, and it would result in keeping the property in the family for the plaintiff to convey to the defendant, and then the defendant borrow the money to pay all the debts of the estate and plaintiff’s judgment also, and proposed to plaintiff that if he would so convey to the defendant, he would procure the money and redeem plaintiff’s interest in said estate lands so sold on execution and pay the debts of the estate, and he would then re-convey to plaintiff his interest in said real estate charged with his share of said debts.
13. That the plaintiff was unable to redeem the property from the said execution sale or borrow the money for that purpose except by means of and out of his interest in the said estate of Andrew Dray, deceased; and about the twenty-eighth day of May, 1888, plaintiff did accept said offer of the defendant; and for the purpose of carrying out such arrangement, plaintiff delivered to the defendant the deed referred to in finding No. 6 hereof which had been previously executed in contemplation of such purpose.
14. That the offer and acceptance thereof contained in findings Nos. 12 and 13 hereof were the consideration for such deed.
15. That the said offer and acceptance were not in writing, and were proven by parol testimony under the objections of the defendant’s counsel.
16. That subsequent to the delivery of said deed by plaintiff to defendant, referred to in finding No. 13, defendant procured from one A. J. Nickum, grantor of A. Dray, deceased, a deed to a portion of said real estate situated in Washington county, to he executed to himself for the purpose of perfecting the title thereto on account of a mis-description in the original conveyance thereof to said A. Dray, deceased.
17. That the execution purchaser of said plaintiff’s interest in said property gave to the plaintiff an option in writing that said property might be redeemed within thirty days, to wit, from the twentieth day of May, 1888, for the sum of $1,200.
18. That the defendant J. W. Dray procured the money, to wit, $1,200, from Dan Marx to redeem plaintiff’s interest in said property so sold on execution prior to the expiration of the time for redemption thereof, to wit, about the eighteenth of June, 1888.
19. That he failed to redeem said real estate from said execution sale; but on the day after the expiration of the time for the redemption thereof, procured a quit-claim deed for the property from the execution purchaser thereof, for which, he paid the sum of $1,000, and executed a mortgage on the property for $200, which he has not paid.
20. Defendant claims that he is the owner of said property by virtue of the said deed of plaintiff to him, and by virtue of said deed from the execution purchaser thereof to him, and denies the alleged oral agreement.
21. That defendant failed to so redeem said property from said execution sale, or to pay off the indebtedness of said estate, or to re-convey said property to the plaintiff, and claims that he is the absolute owner thereof.
The learned referee also submitted the following conclusions of law:
1. That on and prior to the twenty-eighth day of May, 1888, plaintiff was the owner of the equity of redemption in and to an undivided one-third interest in the real property described in finding of fact No. 1, theretofore sold on execution issued on the judgment of the circuit court of the state of Oregon for Union county in the case of J. B. Worster v. Henry G. Dray, this plaintiff, and that the equity of redemption expired on the twentieth day of June, 1888.
2. That the conveyance executed by Henry C. Dray, the plaintiff herein, to the defendant J. W. Dray, of date April 12, 1888, by its terms is an absolute and unconditional transfer of the title or equity of redemption in the said real estate.
3. That by reason of the fact that the defendant, as administrator of the estate of Andrew Dray, deceased, had the possession and control of the property of the estate, and the plaintiff, his brother, being in a financial strait, defendant occupied a fiduciary relation to the plaintiff in the taking of said deed.
4. That the promise of the defendant in this case to re-convey the property to the plaintiff was void by the statute of frauds, and cannot be enforced as such; but the trust may be established by parol testimony of constructive fraud, or by reason of the existence of a fiduciary relation notwithstanding the express promise.
5. That the conduct and promises of the defendant in inducing the plaintiff to change his plans and release to the defendant an interest in the land for the purpose of enabling the defendant to accomplish the redemption of the land and the payment of the estate debts, and then diverting the property to other uses, will raise a constructive trust in favor of the plaintiff.
6. That no debt has been created by the defendant in his favor against the plaintiff’s interest in the property with which the plaintiff is chargeable under the agreement, because the agreement was wholly disregarded by the defendant.
7. That the defendant is a trustee ex maleficio of the title he obtained from the plaintiff of date April 12, 1888.
8. That the defendant being a trustee of the plaintiff’s equity of redemption for the purpose of redeeming the same from said execution sale, the title that he procured by the deed from the said execution purchaser should result to the plaintiff’s benefit charged with the amount paid therefor, to wit, $1,000.
9. Equity will require the plaintiff to do equity; hence he must reimburse the defendant for the amount advanced by him on the said property to the said execution purchaser, to wit, the sum of $1,000, with interest thereon from the twenty-first day of June, 1888.
10. That the plaintiff is entitled to a decree of this court declaring the defendant J. "W. Dray to be a trustee for the plaintiff of an undivided one-third interest in all the real estate described in finding of fact No. 1 hereof, and that he be decreed to convey the same to plaintiff upon the payment by the plaintiff to the defendant of the sum of $1,000 with interest thereon from the twenty-first day of June, 1888.
Plaintiff excepted to the finding of law 'requiring him to pay defendant $1,000 as a condition precedent to his being restored to his estate for the reason that defendant had mortgaged the property for the money with which he purchased the same of the execution purchaser, and the mortgage remains unsatisfied, which exception was allowed by the court. The defendant excepted to the 7th, 11th, 12th, 13th, 14th, and 18th findings of fact for the reason that none of them is supported by the evidence. He also excepted to the 3d, 4th, 5th, 6th, 7th, 8th, and 10th, and the last clause of the 9th conclusions of law on the ground that none of them is warranted by the facts found. These exceptions were overruled, and a decree having been entered for the plaintiff, the defendant appeals.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
