Leasure v. Forquer

1. Pleading Fraud.— Under the established rule that facts and not conclm sions must be pleaded, an allegation that a certain deed was made “for the purpose of hindering, delaying, and defrauding the creditors” of the grantor is not sufficient to sustain a decree, for it states only a conclusion- 2, Fraudulent Conveyance — Subsequent Creditors. — That a conveyance by a grantor who at the time had no creditors to subserve was without consideration does not render it fraudulent as against a subsequent creditor, in the absence of any reservation of an interest in trust for the grantor.

Appeal from Umatilla: Morton D. Clifford, Judge. This is a suit to foreclose a mortgage, and to have the land therein described sold to satisfy the same. The allegations of the complaint are in substance: That on or about the fifth day of June, eighteen hundred and ninety-three, the defendant William Forquer, for value, made, executed, and delivered to plaintiffs his promissory note for the sum of five hundred dollars, payable five months after date in United States gold coin, with interest from date at the rate of ten per cent, per annum, and providing for the payment of a reasonable attorney’s fee in case suit or action was instituted to collect the same; that for the purpose of securing the payment of the same, Forquer, on the twelfth day of June, eighteen hundred and ninety-three, made, executed, duly acknowledged, and delivered to plaintiffs a mortgage upon certain premises therein described containing one hundred and fifty six and seventy hundredths acres, a copy of which is made a part of the complaint. It appears from the copy that Forquer covenanted therein that he was the owner in fee simple of the premises, and that they were free from all encumbrances except a mortgage in favor of J. H. Raley for the sum of five hundred dollars. It is further alleged that the defendant Forquer is insolvent, and the complaint continues: “That heretofore, to wit, on or about the eighteenth day of January, eighteen hundred and ninety-three, the said William Forquer sold and transferred the said real property by deed of conveyance, dated on that day, to defendant Squire Bosworth, for the alleged consideration of eight hundred dollars, which deed of conveyance was recorded on the seventh day of February, eighteen hundred and ninety-three, at page 356 of book IX of Deeds in the office of the county clerk of Umatilla County, Oregon; but in truth and in fact said deed of conveyance was made without any consideration whatever, and was made for the purpose of defrauding, hindering, and delaying the creditors of the said William Forquer, and these plaintiffs in particular, all which was and is well known to the defendant Squire Bosworth, and the said deed of conveyance was and is fraudulent and void as to all the creditors of said William Forquer and these plaintiffs in particular; that the interest, right, estate, title, and lien, if any there be, which said Squire Bosworth has or claims to have in the said lands are inferior and subordinate in right to the lien and right of these plaintiffs therein, by virtue of their said mortgage thereon, and is null and void, and fraudulent as to these plaintiffs, and so far as they and their said lien and right upon said lands are concerned.” There are some other allegations relating to the attorney’s fee, and a supposed mistake in the mortgage, not necessary to recite. Bosworth interposed a general demurrer that the complaint does not state sufficient facts to constitute a cause of suit, which was overruled by the court. In this- it is claimed there was error, and, owing to the imperfect state of the record, it is the only question we can consider.