Robson v. Hamilton

Mr. Chief Justice Moore,

after stating the facts in the foregoing terms, delivered the opinion of the court.

1. The plaintiff’s deposition offered in evidence is to the effect that in the summer of 1894 she was the owner of said land, upon which she was then living, and having a son held in the jail of Linn County, Oregon, awaiting examination upon a charge of larceny, the defendant Juliett Hamilton informed her that her husband and another son were liable to be sent to the penitentiary for crimes committed by them, and suggested that if she would convey said land to her, and leave the state with her husband and the latter son, and not return or .permit her residence to become known to her friends in Oregon, the son who was in jail could attribute the theft with which he was charged to the brother who had gone away, and thus escape punishment; and, fearing that her husband and other son might be apprehended, she accepted the advice of Mrs. Hamilton, and in pursuance thereof executed to her a bill of sale of certain personal property, and a deed of said land, receiving therefor the promissory notes hereinbefore described and $250 in cash, with which she went to California, leaving her son in jail, and taking her husband and the other son with her, and that she did not correspond with any of her relatives until about October, 1896. Certain letters written by Mrs. Hamil *243 ton to plaintiff, and properly identified, were attached to the deposition and offered in evidence; but, having been excluded by the court, they were admitted as “evidence offered, excluded, and excepted to,” under the rule prescribed therefor:' Laws, 1893, p. 26. The plaintiff, having resided in California since 1894, was unable to state upon her examination whether Mrs. Jones had any knowledge of her daughter’s indebtedness prior to accepting the deed from her. J. O. Wilson, appearing as plaintiff’s witness, testified that Mrs. Hamilton, prior to securing the deed of the land, said to him, “If you don’t give me away, I’ll scare them out and get the place.” W. C. Peterson, another witness, testified that, as a notary public, he prepared the deed, and took the acknowledgment of Mrs. Hamilton thereto, conveying the land in question to her mother, and that her father was present when the deed was executed. The witness was thereupon asked to state what was said by Mrs. Hamilton at that time, but, an objection having been sustained on the ground that her mother was not present, his answer was received, and marked as “evidence offered, excluded, and excepted to,” and is as follows: “She came to my office and made a statement that she owed her father and mother for taking care of her children; that she was in a pressed condition, and wanted to turn the property over to them; that they had had some trouble, — as she put it, she wanted a ‘breathing spell. ’ I reached up and took down a blank from my cases,— a mortgage blank. I presumed she wanted tQ give a mortgage. And she said, ‘No; I want to make a deed, and stop this trouble.”’ Before Mrs. Jones can be charged with any participation in the alleged fraud of her daughter, it must appear that Mrs. Hamilton intended, by executing the deed, to place the property beyond the reach of her creditors, with intent to hinder, delay, or defraud them. Her letters to plaintiff tend to show such intention, for in one of them, written twenty-one days before the deed was executed, she says: “I will get you your money if I can. You can fuss at me as much as you please, but you can have no effect on me, as I am a woman of my word. If you get in and sue me, it will take the whole place *244 to pay the lawyers with, and you and I will have nothing. You can just do as you please. Either sue me, and be sure of getting nothing, or you can just wait on me, and I will get it when I can.” This letter, and others of similar import, having tended to disclose Mrs. Hamilton’s purpose in executing the deed to her mother, were admissible in evidence to establish her fraudulent intent, as a foundation upon which Mrs. Jones’ knowledge thereof, if it existed, must have rested; and the court erred in not permitting them to be given in evidence.

2. Mrs. Hamilton’s declarations to the notary in her father’s presence, made at the time the conveyance was executed, were in respect to the subject-matter, and, as such, constituted part of the res gestae, and were admissible in evidence: Wait, Fraud. Conv. (3 ed.) § 276. Thus, as was said by Mr. Chief Justice Sherwood in Snyder v. Free, 114 Mo. 360 ( 21 S. W. 847 ) : “And the declarations made by Mrs. Wing to the notary were evidence, because part of the res gestae, and were evidence to show the intent of the grantor in executing the deed, as against her and all persons claiming under her; and those thus claiming property must take it subject to the infirmity attached to it by the conduct of the grantor. ’ ’

3. Mrs.fHamilton’s answer avers that she was to have a home with her parents on the land which was conveyed to her mother whenever she so desired, and this allegation is not denied by her codefendants. Whether she availed herself of this provision of their agreement, and resided with them any part of the time, is not disclosed by the testimony; but that fact is unimportant, for, as she is their daughter, the law presumes that they were aware of her fraudulent intent, to rebut which the burden was imposed upon them to show that Mrs. Jones was an innocent purchaser for a valuable consideration, and without knowledge or notice of any intent by her daughter to hinder, delay, or defraud her creditors: Marks v. Crow, 14 Or. 382 ( 13 Pac. 55 ); Jolly v. Kyle, 27 Or. 95 ( 39 Pac. 999 ); Feldman v. Nicolai, 28 Or. 34 ( 40 Pac. 1010 ); Flynn v. Baisley, 35 Or. 268 ( 57 Pac. 908 , 45 L. R. A. 645, 76 Am. St. Rep. *245 495 ); Mendenhall v. Elwert, 36 Or. 375 ( 52 Pac. 22 , 59 Pac. 805 ).

4. Defendants offered no testimony to rebut the. presumption which the law invokes when real property is conveyed by one intimate relative to another, the bona fides of which is attacked by creditors alleged to have been defrauded thereby; and the decree should be reversed unless plaintiff’s judgment, which forms the basis of this suit, violates the rules of public policy, as being contra bonos mores. “Public policy,” says Mr. Justice Magruder in People v. Chicago Gas Trust Co. 130 Ill. 268 ( 22 N. E. 798 , 8 L. R. A. 497, 17 Am. St. Rep. 319 ), “is that principle of law which holds that no subject or citizen can lawfully do that which has a tendency to be injurious to the public or against the public good. ’ ’ A court of equity will not lend its aid to enforce a contract growing immediately out of, or necessarily connected with, an illegal or immoral act: Buchtel v. Evans, 21 Or. 309 ( 28 Pac. 67 ); Ah Doon v. Smith, 25 Or. 89 ( 34 Pac. 1093 ); Bradtfeldt v. Cooke, 27 Or. 194 ( 40 Pac. 1 , 50 Am. St. Rep. 701 ); Miller v. Hirschberg, 27 Or. 522 ( 40 Pac. 506 ); Pacific Live Stock Co. v. Gentry, 38 Or. 275 ( 61 Pac. 422 , 65 Pac. 597 ); Oscanyan v. Arms Co. 103 U. S. 261 . Thus, where a party purchases land of another at a price greatly less than its value, if not for the purpose of taking advantage of the vendor, at least for the purpose of enabling him to go out of the state and avoid a prosecution for felony, a court of equity will not lend its aid to enforce a contract made under such circumstances: Dodson v. Swan, 2 W. Va. 511 ( 98 Am. Dec. 787 ). The test of a violation of the rules of public policy is whether the plaintiff requires the aid of the illegal transaction to establish his right; for, if he cannot open his case without showing that he has transgressed the law, a court will not assist him: Morris’ Run Coal Co. v. Barclay Coal Co. 68 Pa. 173 ( 8 Am. Rep. 159 ); Nester v. Continental Brewing Co. 161 Pa. 473 ( 29 Atl. 102 , 24 L. R. A. 247, 41 Am. St. Rep. 894 ). “If a plaintiff,” says Mr. Justice Duncan in Swan v. Scott, 11 Serg. & R. 155, “cannot open his case without showing that he has broken the law, a court will not assist him, *246 whatever his claims, in justice, may be upon the defendant; and, if the illegality be malum prohibitum only, the plaintiff may recover, unless it be directly on the forbidden contract,— a bond, the consideration of which grows out of an illegal transaction. There the illegal consideration is the sole basis of the bond, and there can be no recovery. But if a judgment has been rendered on that bond, and another bond is given in satisfaction of it, there the judgment, which must be legal, is the consideration, and the obligor is precluded from entering into the legality of the original transaction.” In the case at bar the suit is not upon the original contract, but upon the judgment which forms the foundation for, and is the basis of, the relief demanded. Mrs. Hamilton agreed to pay a valuable and an adequate consideration for the land and personal property which she secured from the plaintiff, but, having failed to pay three of the promissory notes, evidencing a part of the purchase price, judgment was rendered thereon for the sum due. It was not necessary, therefore, for the plaintiff, in opening her case, to show that she had violated the law, nor did she require the aid of the original transaction to establish her case; and hence the decree must be reversed.

5. Suits in equity are tried anew on appeal, and a final decree is usually rendered in this court, and a cause should not be remanded to the lower court for further consideration unless necessity demands it. It was incumbent upon the defendants to present their testimony when they had an opportunity, but their failure to do so was evidently induced by a reliance upon the court’s excluding competent evidence, to the introduction of which their objections were sustained; and, assuming this to be so, the cause will be remanded for such further proceedings as may be deemed proper, not inconsistent with this opinion. Reversed.