Feldman v. Nicolai

Opinion by Mr. Justice Moore.

A careful examination of the evidence shows that on April first, eighteen hundred and ninety, the defendant Adolph Nicolai owed various persons about twenty-five thousand dollars, of which sum four thou *42 sand four hundred and thirty-seven dollars and fifty-five cents was due the defendant W. W. McGuire, to pay which Nicolai and his wife executed their deed of that date. While there is a controversy about the amount due McGuire at that time, we think the evidence fully shows that it was the sum stated above, and that no actual fraud was intended by either party to the deed, and hence the only question to be considered is whether the grantee paid a full consideration for the premises. The value of the property conveyed is estimated by two witnesses at four thousand dollars, and by three others at four thousand two hundred dollars, four thousand three hundred dollars, and five thousand dollars, respectively. The eight thousand five hundred dollars mentioned in the deed appears to have been adopted by the parties as the amount to be inserted as the consideration therefor before the interest had been computed upon the sum due McGuire, without any intention of defrauding Nicolai’s creditors. The right of a debtor to prefer a particular creditor is not prohibited by statute, but where such creditor is a relative or member of the debtor’s family the court will examine the evidence relating to the transfer of the debtor’s property in satisfaction of the preferred creditor’s claim with greater care: Jolly v. Kyle, 27 Or. 95 ( 39 Pac. 999 ). Tested by this rule, we conclude the defendant W. W. McGuire has paid an adequate consideration and clearly established his title to the premises conveyed to him. The evidence also shows that the lots conveyed to Rosalia McGuire were subject to the following liens: Mortgages and interest, sixteen thousand two hundred and thirty dollars; street assessment, one hundred and ninety-one dollars; judgments, three thousand one hundred and fifty-two dollars; and that in consideration of *43 four thousand two hundred and sixty-one dollars and seventy-five cents due from Nicolai to McGuire, and the latter’s agreement to assume and pay off said liens, Nicolai and wife, on October twentieth, eighteen hundred and ninety, conveyed the premises to Rosalia in trust for her husband. The plaintiffs dispute an item of two thousand one hundred dollars claimed to have been loaned by McGuire to Nicolai, but McGuire shows from whom he obtained it, and his bookkeeper testifies that he drew a note for this amount which Nicolai signed, and that he saw McGuire pay Nicolai quite a sum of money. We think it clearly appears from the evidence that between April first, and October twentieth, eighteen hundred and ninety, McGuire, loaned to and assumed the payment of debts for Nicolai amounting to four thousand two hundred and sixty-one dollars and seventy-five cents. The deed to Rosalia was immediately recorded, and the parties took possession of the premises under it, and, while there are some circumstances connected with the transfer that would seem to indicate fraud, we are convinced from the evidence that no actual fraud ivas intended, and that the conveyance was made in good faith, and with no intention upon the part of McGuire or his wife to defraud the creditors of Nicolai. The value of the lots conveyed to Rosalia McGuire is estimated at from eighteen thousand five hundred dollars to thirty-six thousand dollars, in which latter sum two witnesses agree, while six others place the value below twenty-three thousand eight hundred and thirty-four dollars, the amount paid and assumed by McGuire. From this evidence we think an adequate consideration was paid, and hence the decree must be affirmed and it is so ordered. Affirmed.