Denver, and with the United States Steel Company, of New York and San Francisco. He says he made six trips to New York to close the deal, and worked continuously on the proposition for 2 years and 7 months. After these options lapsed he secured others, and finally entered into negotiations with Mr. E. H. Harriman, with whom he closed the deal. After the first transaction fell through, he found that he could not carry out any deal without taking up other claims, so he made an entry on 30 additional ones of 600 acres. He made arrangements for money to use in locating the claims, made several trips to the properties, put in two or three mining camps, and did work thereon. From that time on he heard nothing from Spencer until after the deal was consummated, more than 2 years later. He put in several thousand dollars defraying the expenses of these trips and locating the 30 claims. The name of A. B. Spencer was nev

drawn and signed in the same manner in | in Los Angeles, Duluth, Iron Mountain, Mich., favor of the Capital National Bank of Salem for $17,000, for the payment of the balance on the purchase when the title should be approved. Mr. Barnes directed the deed to be made to her. She mortgaged land which she owned in Los Angeles, for $5,000, with which the Hofer property was bought in May, 1912. The sum of $2,500, was borrowed of Ladd & Bush upon the note of L. S. Barnes, pledging as security her Masonic Temple bonds. With this the Barber property was purchased. After the purchase of the Meyers realty, she and her husband returned to California, and at a later date the transaction was completed and the deeds recorded. The error in making the deed to L. S. Barnes, instead of to her, was not discovered until some time later, when he promised to correct it by conveying the real estate to her, but he had not done so at the time this suit was commenced. It is shown that at the time Mr. and Mrs. Barnes were married she had a bank account of about $1,000, and consider entered in any of the options. He was erable jewelry, diamonds, etc. Barnes does not appear to have had any property at that time.

As to the equities pertaining to defendant Spencer's judgment it is claimed on behalf of plaintiff that in June, 1907, L. S. Barnes went to Tucson, Ariz., where Spencer resided, for the purpose of examining some copper mines, of which they took pictures. While they were in the photo gallery, one Parker, the photographer, showed them specimens of iron ore from Riverside county, Cal., and informed them that there were options upon the property running until September. A conversation was had between Spencer and Barnes in regard to co-operating in making a sale of mining property on equal shares. Spencer says he was to see about getting the mines in Arizona, furnish the necessary papers, descriptions, and prices, and forward them to Barnes, who would attend to the end in Los Angeles. The latter part of August Parker furnished Spencer the data concerning the iron claims, blueprints of the condition, description, and price of each, and the name of the owner, which Spencer forwarded to Barnes at Long Beach, who secured the options. In June, 1907, Barnes sent a form of option to Spencer for Parker's signature which Spencer was unable to secure. This option was sent within a short time after the first conversation. Barnes later got Parker's option. Spencer corresponded with Barnes until December, 1907. On August 19th of that year he wrote to Barnes, asking him to return the maps and papers which he had sent him, saying, "We will go out of the mining business." Barnes sent him all the maps, etc., that he had at the time. They did not see each other again until October, 1909.

Barnes' version of the transaction as to his efforts to sell the mining property is that he took the matter up with various parties 153 P.-4

absolutely unknown in any of the transactions after some time early in the fall of 1907, and never invested a dollar to promote the sale. The record contains quite a large mass of correspondence, telegrams, and exhibits relating to the negotiations and deals. For the efforts made by the people interested with Barnes in the North American Steel Company, he later paid them $7,500. He turned over a one-fourth interest in the 30 claims to a Mr. Shonts and his associates, receiving $5,000, together with their assistance in selling the claims; and one Anderson, at the time the deal was closed, received $85,000 for this one-fourth interest. The 30 claims were 65 miles from a railroad, and from 12 to 26 miles from water, which was packed in on mules at an expense of about $8 per barrel. Engineers were sent to examine the property, and the cost of taking them in was from $2,500 to $3,500 per trip. Barnes purchased a one-hundredth interest in the patented claims of one Alice M. Stocker for $6,500, and secured a one-sixth interest in the claims of a Walter M. Brown. These, together with his remaining interest in the 30 claims and his interest in some watering places, he sold to Mr. Harriman for $100,000. The properties were transferred to the Iron Chief Mining Company organized for that purpose. Spencer contributed nothing towards securing the properties, and took no interest in the deal. The only work which he actually did was to obtain the maps and data from Parker and forward the same to Barnes at Long Beach in August, 1907, which was probably worth $10 or $15. After the sale of the mining property Spencer claimed an interest in the commissions, of which there appeared to be none, and brought action in California, alleging that defendant Barnes had procured the sale of mining claims and earned a large amount, as commission, which jointly belonged to him and

Barnes in equal sums, as partners. During | cer, who has a judgment which is valid and his absence judgment for $69,339 was obtain- binding as between him and Barnes, the pared for a small amount of labor, without ties thereto, is an important one. Our statBarnes having an opportunity to present his version of the transaction.

Oscar Hayter, of Dallas, and W. T. Slater, of Portland (M. E. Pogue, of Salem, on the brief), for appellants. Jay Bowerman, of Portland, and W. Lair Thompson, of Lakeview (Fulton & Bowerman, of Portland, on the brief), for respondent.

ute and the decisions thereunder place a judgment creditor in practically the same position as a purchaser holding under a deed subsequent to the equities claimed. In Gottlieb v. Thatcher (C. C.) 34 Fed. 435, it was held by Mr. Justice Brewer that, as against a prior grantee and purchaser at an execution sale under a preceding judgment, a subsequent judgment against the grantor and debtor is not conclusive, either as to the stances and character of the transaction out amount of the debt, or as to the circum

BEAN, J. (after stating the facts as above). [1] The defendant Spencer claims as a purchaser in good faith for a valuable conof which the indebtedness arose, and where sideration, under the provisions of section 301, L. O. LA, which provides that from the made defendant to a bill by the holder of such judgment to set the conveyance aside date of the attachment, until it be disas in fraud of creditors, and to subject the charged or the writ executed, the plaintiff, land, such prior grantee and purchaser may as against third persons, shall be deemed a purchaser in good faith and for a valuable show that the debt for which the judgment consideration of the property attached, and was rendered had been more than paid when under subdivision 4, § 233, L. O. L., which taken an unfair advantage of the debtor in it was obtained, and that the creditor had declares that an execution is levied on property in the same manner and with like effect the matter of interest. In Ingals v. Brooks, 29 Vt. 399, the facts of the case were as as similar property is attached. Defendant follows: Israel Brooks conveyed all his maintains that the property is not subject to lands to his son, Clark Brooks, and as part the prior equity of plaintiff. In order for consideration therefor Clark agreed to pay defendant Spencer, as an attaching creditor, to be deemed a purchaser in good faith and the debts of his father. Leafy Brooks, who had become the wife of Ingals, presented a for a valuable consideration as against the claim against the father, against which the plaintiff, Grace D. Barnes, who is the owner son Clark maintained he had a set-off. They of an outstanding equity in the property upon which execution was levied, the defend-compromised, Clark Brooks released his setant must allege and prove all the facts nec-off, and Ingals and wife threw off half the essary to establish that character of his ownership as against such equity. One of such material facts is that his claim is founded upon a fair valuable consideration. Flegel v. Koss. 47 Or. 366, 83 Pac. 847; Rhodes v. McGarry, 19 Or. 222, 23 Pac. 971; Haines v. Connell, 48 Or. 469, 87 Pac. 265, 88 Pac. 872, 120 Am. St. Rep. 835. An attaching creditor, although placed on an equality with a purchaser, cannot claim any greater privilege than would be granted to such purchaser. Jennings v. Lentz, 50 Or. 483, 487, 93 Pac. 327, 29 L. R. A. (N. S.) 584. The defendant Spencer recognized this principle, and by his amended answer has alleged facts to bring him within the rule laid down in the Rhodes-McGarry Case. The question therefore recurs upon the proof and the equities of the case.

[2] It is the contention of counsel for Spencer that plaintiff cannot question the judgment rendered in Spencer v. Barnes. It is said by Mr. Freeman in his work on Judgments (3d Ed.) § 162:

"It is well understood, though not usually stated in express terms, in works upon the subject, that no one is privy to a judgment whose succession to the rights of property thereby affected occurred previously to the institution of the suit."

The question as to whether or not Mrs. Barnes can compare her equities in the

claim. Ingals then went to Israel Brooks and got him to allow judgment to go against him for the other half of the claim, of which proceeding Clark had no notice. Ingals then levied execution under this judgment on the lands held by Clark Brooks, and sold the same, and in course of time got a sheriff's deed and began his action in ejectment. The court uses the following language:

and in express violation of the understanding of "The judgment, being altogether inter alios, Clark when he surrendered the claim against Leafy, one of the plaintiffs, and paid half the tion of the whole, could have no effect upon the amount of the note in money, in agreed satisfacdefendant Clark. He is entitled to show that the note was paid before sued, or that the judg ment was, for other reasons, fraudulent to him. Atkinson v. Allen, 12 Vt. 619. This compromnise of the note by Clark was just as effectual a bar to the claim, in law, and just as effectual a release of his undertaking to pay it at the time of the conveyance, as if he had paid all the money upon it."

It is true he did undertake or"promise to pay all the debts of the grantor (his father), but he has in fact paid them all, except the mortgage, which is not in question. And the judgment against Israel (the father), is either a subsequent debt, founded exclusively upon his promise to pay what they did not get of Clark, and which in no sense, under the circumstances, can be regarded as forming any portion of the debts which Clark was to pay, or else the whole proceeding, so far as it is attempted to give it the appearance of a prior claim, is a fraud upon the compromise and set

The doctrine is

surrender of the note. And in either case it will tion and attaches to the party from whom not enable the plaintiff to treat the conveyance the consideration comes. as void, and levy upon it as the land of Israel Brooks. Judgment reversed. Case remanded." In Boutwell v. McClure, 30 Vt. 676, the

court says:

"The judgment upon the plaintiff's claim in this action, whether rendered before or after the claimant's appearance, concludes nothing upon the question. In all such cases there is likely to exist the form of a contract of a date early enough to accomplish its purpose, and it is not uncommon that this contract assumes the more solemn form of contracts, such as that of a promissory note, or even a judgment of a court of record. But in either case they are, of course, only conclusive upon the parties to such contracts. Upon any questions arising in regard to the creditor being bona fide such at a particular date, and continuing such to the present time, the contract is but prima facie evidence of the fact. It is always competent to impeach the debt, either as to its bona fide character, its date, or its continuance. For although the debt once existed, and of a date early enough to override the plaintiff's claim, yet, if it has been extinguished by payment on the part of the debtor, it sinks at once into the common mass of his assets, and cannot be subsequently kept on foot, as the debt of a bona fide creditor."

settled in England, and in a great majority of the American states, that where property is purchased and the conveyance of the legal title is taken in the name of one person, while the purchase price is paid by another, a trust at once results in favor of the party who pays the price, and the holder of the legal title becomes a trustee for him. Pomeroy's Equi. Juris. (3d Ed.) § 1037; Berry v. Wiedman, 40 W. Va. 36, 20 S. E. 817, 52 Am. St. Rep. 866; Denny v. Schwabacher, 54 Wash. 689, 104 Pac. 137, 132 Am. St. Rep. 1140; Siling v. Hendrickson, 193 Mo. 365, 92 S. W. 105.

But

[5] As a general rule, trust property is not liable for the trustee's debts, and cannot be reached by attachment or execution, even though the trustee's creditors have no knowledge of the existence of the trust; the record title being in the name of the trustee. any beneficial interest the trustee may have in the estate may be reached by attachment or otherwise. 39 Cyc. 227f; Perry on Trusts (6th Ed.) §§ 15, 346; 1 Black on Judgments, In Temple v. Osburn, 55 Or. 506, 106 Pac. § 421; 2 Freeman on Executions (3d Ed.) 16, plaintiff held title under an unrecorded 173; 28 Am. & Eng. Ency. of Law, 940, and deed. Defendants, by a conveyance ordered notes; Meier v. Kelly, 22 Or. 136, 29 Pac. by the court, in a subsequent suit in which 265; Dimmick v. Rosenfeld, 34 Or. 101, 55 plaintiff was not a party, held that plaintiff | Pac. 100; Smith v. Farmers', etc., Bank, 57 was not bound by the decree. It was held in Or. 82, 87, 110 Pac. 410; Hart v. Bank, 33 Vt. Davis v. Davis, 20 Or. 78, 25 Fac. 140, that 265; Houghton v. Davenport, 74 Me. 590. A when the title of a grantee is attacked for resulting trust is within the operation of the fraud by a judgment creditor, the grantee rule noted. School Dist. v. Peterson, 74 Minn. may look behind the judgment and ascertain 122, 76 N. W. 1126, 73 Am. St. Rep. 337. whether or not there was an actual indebt- Anent this question former Mr. Justice Bean, edness between the parties upon which the at page 139 of 22 Or., at page 267 of 29 Pac., judgment is founded. of the opinion in Meier v. Kelly, supra, said:

[3] Where one claims real estate as a purchaser in good faith and for a valuable consideration, as does defendant Spencer in this case, although he may claim by virtue of a judgment of a court of record, as between such claimant and one having prior equities in the property, the record title to which is in the name of a trustee, the amount of the actual value of the consideration becomes a inaterial question. In order to determine the equities between the parties the court must, of necessity, take cognizance of the value of such consideration by virtue of which the defendant claims and has pleaded and would have weighed against the equities of the plaintiff. All that Spencer claims to have done in the premises was to make the arrangement with Barnes in June, 1907, and forward the data furnished by Parker to Barnes at Los Angeles, which was soon returned at his request. Spencer has not shown that he has parted with a fair and valuable consideration in the premises so as to bring him within the protection of section 301 of the statute, as a purchaser in good

faith for a valuable consideration. Rhodes v. McGarry, and other authorities, supra.

When called

"As a general rule, unless otherwise provided by statute, a judgment lien only attaches to the judgment debtor in land, and is subject to all actual and not the apparent interest of the equities which were held against the land in the hands of the judgment debtor at the time the judgment was rendered, whether known to the judgment creditor or not. upon in a proper case, courts of equity are always ready to protect the rights of those who hold such equities as against the judgment lien, and to confine the latter to the actual interest of the judgment debtor. For this purpose they will correct a mutual mistake in the description in a mortgage, and, as corrected, give it priority over a subsequently acquired judgment" (citing many authorities).

The syllabus in Dimmick v. Rosenfeld, supra, is as follows:

"After-acquired property.-Lands purchased through an agent who took the title in his own name, without the principal's knowledge or consent, and then conveyed to her, are not thereafter subject to execution on a prior judgment against the agent, since he had only the bare itself." legal title without any interest in the property

Pac. of the opinion we find this quotation At page 104 of 34 Or., at page 101 of 55 from Snyder v. Martin, 17 W. Va. 276, 41 Am.

Rep. 670:

[4] It is an ancient equitable principle that a judgment is a charge upon the precise inter"Independent of any statute law, the lien of a beneficiary estate follows the considera-est which the judgment debtor has, and upon

O other. The apparent interest of the debtor | $19,250, the Hofer property at $5.000, and can neither extend nor restrict the operation of the Barber property at $2,500 totals that the lien so that it shall incumber any greater amount, $26,750, leaving none of her funds for application on the Burrows property.

or less interest than the debtor in fact possesses. The judgment creditor has a charge on the interests of the defendant in the land, just as they stood at the moment the lien attached; therefore, though he seems to have an interest, yet, if he have none In fact, no lien can attach. The rights of the judgment lien owner cannot exceed those which he might acquire by a purchase from the defendant, with full notice of all existing legal or equitable rights belonging to third persons."

[6] We find that the evidence in the case under consideration clearly shows that the Salem Hotel property was purchased of Mr. Joseph Meyers, and that $19,250 was paid therefor, with Mrs. Barnes' money, which was obtained by the sale of real estate in California; that the Hofer property was bought and paid for with $5,000, the money of Mrs. Barnes, which was raised upon a mortgage given on her real estate in Los Angeles; that the Barber property was purchased with money belonging to Mrs. Barnes for $2,500, raised by hypothecating her Masonic Temple bonds. The decree as to these three parcels of property is affirmed. As to the Burrows property, it was bought for $4,000. It is described as follows in the complaint:

"Also beginning at a stake at the intersection of Division and Liberty streets, in the city of Salem, Marion county, Oregon, and bearing north from the northwest corner of block No. 26 in said city and 99 feet distant, and running north along the east line of said Liberty street, 165 feet to a stake; thence south 165 feet to a stake; thence west 165 feet to the place of beginning, and situate in Marion county, Oregon.

[7] To establish a resulting trust in property by parol testimony the evidence must be full, clear, and convincing. If it is attended by doubt and uncertainty, the writing must remain the highest and best evidence. Snider V. Johnson, 25 Or. 328, 332, 35 Pac. 846; Barger v. Barger, 30 Or. 268, 47 Pac. 702; Oregon Lumber Company v. Jones, 36 Or. SO, 85, 58 Pac. 769. It is not enough that

Barnes may have intended to transfer the Burrows property to his wife, or that he had promised to do so, or that he justly owed her an amount of money equal to the price thereof. That is not plaintiff's claim as asserted court as to the Burrows property is modified in her complaint. The decree of the lower so as to exclude the same from the injunc

tion.

[8] It is contended by defendant Spencer that the plaintiff cannot question the fairness of the Spencer judgment, for the reason that the complaint alleges that such judgment was duly rendered. That pleading, however, refers to this judgment as a pretended one. Defendant's answer pleadedthe defendant A. B. Spencer against the defend"that the consideration of the said judgment of ant Legene S. Barnes is a balance of $69.339, found due said Spencer from said Barnes by the superior court in and for the county of Los Angeles, state of California, upon an enforced accounting against said Barnes of a partnership business conducted by said parties from August 28th, 1907, until the autumn of the year 1909, for the sale of certain iron mining claims in the state of California.'

In reply thereto, the plaintiff properly states that Spencer was never a partner of defendant L. S. Barnes, and assails the equities of the judgment by an appropriate reply concerning the consideration of the judg

ment.

"Also the following described premises to wit: Commencing at a stake on the east line of Liberty street in the city of Salem, one hundred and sixty-five (165) feet north from the point where the east line of Liberty street intersects the north line of Division street, as shown by the recorded plat of the city of Salem; thence northerly along the east line of Liberty street, twenty-five (25) feet; thence easterly, at a right angle to said Liberty street, one With the modification above mentioned, the hundred and sixty-five (165) feet; thence south- decree of the lower court is affirmed; nelerly parallel with said Liberty street, twenty;ther party to recover costs herein. five (25) feet; thence westerly one hundred and sixty-five (165) feet to the place of beginning, being and lying in lot No. seven of the unnumbered block lying immediately north of block No. 26 in the said city of Salem, Marion county, Oregon."

Practically all the testimony in regard to the funds with which this property was bought is that of Mr. Barnes, to the effect that his wife bought the same from her sister for her mother; that he "put the money up"; that it was some he received for wages; that he paid $4,000 for it, and obtained the money "from a bank account of my own in Los Angeles." The evidence fails to show that this piece of realty was purchased with Mrs. Barnes' money. Moreover, Mrs. Barnes alleges in her complaint that she advanced the sum of $26,750 to her husband for the purpose of buying the lands described in the complaint. The Salem Hotel property at

EAKIN, J., did not sit.

(78 Or. 291).

STALKER et al. v. STALKER et al. (Supreme Court of Oregon. Nov. 23, 1915.) 1. SPECIFIC PERFORMANCE 47-PAROL CONTRACT FOR SALE OF LAND-PART PERFORMANCE.

The taking possession of real estate pursuant to an oral contract for the sale thereof is such part performance as will take the contract out of the statute of frauds unless the relation of affinity or consanguinity exists between the vendor and purchaser, in which case the making by the purchaser of valuable improvements in addition to the taking of possession is essential to specific performance of the

contract.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. § 132; Dec. Dig. 47.]

Evidence held to justify a finding that a husband orally contracted to convey land to his plural wife, and that she took possession of the land relying on the contract and made valuable improvements thereon authorizing her heirs to compel specific performance.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 387-395; Dec. Dig. 121.]

In Banc. Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

"The man who has the farm, his lease will expire this fall, and like all rented places 'tis in a bad shape. I left it fenced and house in good repair, but it will take some money to fix it up, so I think it would be only right for you to give me the deeds and I can sell the place. This you will think a big demand but I think 'tis a small compensation for the many years I was your willing slave for you and your entire family."

Replying to such solicitation, he wrote her as follows:

"Agreeable to request, I am making an effort to furnish you a legal deed to your home in Suit by E. Lucille Stalker and others Pine Valley. * * The original deed would against Alexander R. Stalker and others. not be of any service to you, therefore I sugFrom a decree for plaintiffs, defendants ap-gest that you draw up a deed, taking Lucille's as peal. Affirmed. a basis, describing the parcel of land Lucille owns in the premises. I ask this to make her

This is a suit to quiet the title to real prop-safe, and because I cannot describe it. Give the erty. The material facts are that on March 22, 1882, when section 5352, R. S. U. S., denouncing bigamy, was amended, Emily E. Stalker was a plural wife of Alexander Stalker, and both were members of the Church of Jesus Christ of Latter Day Saints and then residing in the territory of Idaho, where their sons and daughters, the plaintiffs, were born prior to January 1, 1883, and each was legitimated by section 7 of the amended enactment. 22 U. S. Stat. c. 47. Mr. Stalker, fearing prosecution for polygamy in Idaho, determined to put away such plural spouse and for that purpose he came, in the summer of 1886, to Pine Valley, Baker county, Or., where he purchased the northwest quarter of section 26 in township 7 south, range 45 east of the Willamette Meridian, paying for the land $700, and also laying out about $300 in building an addition to the house on the premises. In the fall of that year he caused the plaintiffs and their mother to be removed to and settled upon this land. He took the title to that quarter, section in his own name, so that if the plural wife became discouraged she could not immediately sell, convey, or mortgage the real property, and with the money thus obtained return to her former home and trouble him. The next year after the plaintiffs and their mother were taken to the land, Mr. Stalker went back to Idaho and never returned to Oregon. At the time the tract was purchased, there were only a few acres of it improved, but the plaintiffs removed the brush growing on the premises, cleared about 70 acres, and made many permanent and valuable improvements upon the real property until it is now worth about $6,000 as a result of their labor. Mr. Stalker collected the rent of the premises while he so occupied them, but thereafter the plural wife lived upon the land or received the rents accruing from a lease thereof. He, for a consideration of $25, conveyed to the plaintiff E. Lucille Stalker 14 acres of the premises, and he has paid the taxes annually imposed on the land to and including the levy for the year 1910. The plural wife, on August 10, 1910, wrote Mr. Stalker a letter from which an excerpt is taken, viz.:

matter agreeably to the method they do such metes and bounds carefully, fill out the whole things in Oregon, then send to me and I will have it attested and sworn to before a notary public and returned to you."

He on December 29, 1910, mailed to his son, the defendant Alexander R. Stalker, a letter wherein he referred to the plaintiff Walter R. Stalker, saying:

"I write in regard to my property in Pine Valley. Emily has through a lawyer in Porta deed to the property there. land written to me requesting me to give her I thought the matter over and concluded to do so, and wrote to her to that effect, as it has been an elephant since written to Wallace and he tells me that on my hands through all these years. But have the property there is worth fifteen or sixteen thousand dollars. How is that, or do you know anything about values there? If he is correct about that, that would be giving her too great an advantage over the rest of you. The deed I received today to be filled out and signed. How does this appeal to you? I wish to do the right thing all around but if Wallace's estimate of to the rest of you, and therefore the only thing the property is near right, this would be a wrong left for you would be to take out an injunction and prevent it (I mean your mother's children). the property if he is any where near correct. I I had a misconception regarding the value of have had a number of persons writing from Pine. who wished to buy, Wallace among the number, but I studiously refused to sell not wishing to What have leave the family without a home. you to advise in the premises? Tell me what you know without reserve at your earliest convenience. I have been to great expense paying taxes, water suit, etc."

No deed was returned from Mr. Stalker, who died in March, 1912, and the plaintiffs' mother died November 14th of that year. Hortensia Stalker, the first and legal wife, died in the year 1908, leaving then surviving her husband Alexander Stalker and their sons and daughters, the defendants in this suit.

The complaint alleges that the plaintiffs are the heirs at law of Emily E. Stalker who died intestate; that they and their mother were removed by Alexander Stalker and settled upon the land in Baker county, Or., “under a verbal contract and agreement that the said tract or parcel of land should be the property of said Emily E. Stalker, and the said Emily E. Stalker then and there was put into and took possession of said land un

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes