these transfers was to cheat and defraud plaintiff and prevent it from collecting the money due it; that the father paid no consideration therefor, but, at the time and

prior to the execution thereof, had full knowledge of the son's fraudulent intent and conspired with Harry M. Courtright to defraud plaintiff, and well knew at the time of such transfers that his son had no other property with which to satisfy plaintiff's claim; that the son has no property within the jurisdiction of the court subject to execution other than certain personal property already seized by the sheriff of about $1,218 in value; then follow allegations upon which to base a temporary restraining order to certain officials in regard to the disposal of certain property. The prayer is for a decree canceling the transfers to the father as fraudulent and applying the property to the payment of plaintiff's claim; asking the appointment of a receiver; also for an accounting with the father, and for a foreclosure of plaintiff's lien upon the real estate in Skamania county, Wash., and Clackamas county, Or., and for general relief.

Action by the First National Bank of Portland against Harry M. Courtright and Morris L. Courtright and others. Judgment for defendants, and plaintiff appeals. Affirmed. This is a creditor's suit, whereby it is sought to subject certain property now in the hands of defendant Morris L. Courtright to the payment of a debt contracted by Harry M. Courtright. The substance of the complaint is that, for the past six or seven years, Harry M. Courtright has been engaged in the business of purchasing delinquent tax certificates and in other transactions germane thereto; that in carrying on the occupation he borrowed large sums of money from the plaintiff; that on November 4, 1914, he owed plaintiff $43,500, to evidence which he executed to it his promissory note, bearing interest at the rate of 7 per cent., with the customary provision for attorney's fees; that, upon the failure of the maker to pay this note at maturity, an action was commenced for its recovery, resulting in a judgment for plaintiff in the sum of $45,190 and $300 as reasonable attorney's fees, which was duly docketed in the judgment lien docket of Multnomah county; that, during the time Harry M. Courtright was so borrowing money from the plaintiff, largely, if not wholly, with the money so borrowed he was indebted to the father on account of purchased and acquired, in addition to a large number of certificates of delinquency 000, for which security had been given to moneys loaned in the amount of about $50,from the sheriffs of Multnomah and Clacka- the amount of about $15,000; that on the mas counties, certain real property in the same day the father demanded payment from city of Portland, a description of which is the son of this debt; that the son then asset out in the complaint; that, while he was signed to him delinquency certificates of the so borrowing moneys from plaintiff, he rep-value of about $20,000; that on November resented to it that his net worth exceeded $100,000; that about November 4, 1914, the

date of the execution of the note above

mentioned, he represented to plaintiff that he desired to secure the indebtedness due plaintiff, and, without solicitation on the part of plaintiff, he executed to the defendant Security Savings & Trust Company deeds of conveyance of certain real property situated in Skamania county, Wash., and Clackamas county, Or., representing that these properties had considerable value, but that, in fact, as plaintiff afterwards discovered, were practically worthless; that at various times during the year 1914 while Harry M. Courtright was so indebted to plaintiff, for the purpose of hindering, delaying, and defrauding it, he conveyed to Morris L. Courtright, his father, all of the Portland real estate above mentioned, and assigned to him substantially all of the certificates of delinquency held by him aggregating about $37,500 in value; that these transfers were without consideration and were made with the understanding that the father should hold the property in trust for the sole use and benefit of the son and that such action has placed the property beyond the power of the court to reach in an action at law,

To this complaint the father and son file separate answers in which, after denying the allegations of fraud and deceit, they allege affirmatively that on August 1, 1914, the son

4, 1914, the son still owed the father $15,000, and in payment thereof conveyed to him the Portland property above mentioned; that the assignments and conveyances were made in good faith in payment of a bona fide debt without the intent to defraud; and that plaintiff at all times was fully informed as

to such indebtedness.

A trial being had, a decree was entered in favor of defendants, from which plaintiff appeals.

Joseph Simon, of Portland (Dolph, Mallory, Simon & Gearin, of Portland, on the Albert B. Ridgway, brief), for appellant. of Portland (Morris L. Courtright, of Bay City, Mich., and Ridgway & Johnson, of Portland, on the brief), for respondents.

BENSON, J. (after stating the facts as above). It will be seen from the statement of the issues that we are simply to determine from the evidence whether or not the transfer of property from the son to the father was an honest one and in payment of a bona fide debt. The evidence is voluminous and covers a vast number of individual transactions. We have gone through this record with extreme care, at a considerable ex

ed analysis would not be of any value to the | suit and ordering a sale of property on exindividual litigants or to the bar generally. ecution, plaintiff appealed, and defendants It is therefore deemed proper to say that we move to dismiss. Motion denied. are unable to find any convincing evidence Upon motion to dismiss appeal. The dethat Morris L. Courtright was guilty of any fendant Davis obtained a judgment in an acfraud or deceit in connection with the trans- tion for the recovery of money against John actions of which complaint is made. It is P. Ranzau and Dorothea V. Ranzau, his wife, true that the conduct of Harry M. Court- and thereafter had an execution issue thereright has been far from praiseworthy or on with directions to the sheriff to levy upcommendable. He did submit to the plaintiff on and sell certain real property in satisfacbank several written statements of his finan- tion of such judgment. The plaintiff herein, cial condition which represented him as who is the minor son of the defendants in having net assets in excess of $100,000, when the action at law, then commenced this suit in fact he had no assets of any appreciable to enjoin the levy and sale of the real propvalue. He does not in any definite way ac-erty upon the ground that he is the owner count for the large sums of money which thereof. A trial was had in the lower court, passed through his hands, and the glaring fact remains that he has grossly wronged the bank that befriended him; but we think the evidence justifies the findings of the trial court that he did owe his father a large amount of money, the value of the property transferred does not exceed the indebtedness, and there is nothing in the record disclosing any knowledge upon the part of the father in relation to his son's wrongful acts. BENSON, J. (after stating the facts as [1, 2] We cannot decree a foreclosure of above). The motion is based upon two conplaintiff's lien upon the real property intentions: (1) That the sureties upon the unSkamania county, Wash., and Clackamas county, Or., for the trial court had no jurisdiction for that purpose, and it is therefore beyond our power. L. O. L. § 396; 27 Cyc. 1519, and cases there cited.

It follows that the decree of the trial court must be affirmed, and it is so ordered.

and from a decree dismissing the suit and ordering a sale of the property upon execution the plaintiff has appealed to this court, and defendants move to dismiss the appeal.

Chas. E. Lenon, of Portland, and Chas. L. McNary, of Salem, for appellant. Walter C. Winslow, of Salem, for respondents.

dertaking on appeal are insufficient; and (2) that the appellant did not file a supersedeas bond, and that the sheriff has already sold the land upon execution, and such sale has been duly confirmed, and that therefore there is no substantial controversy upon which this court is called to pass.

[1] Considering these contentions in the or

MOORE, C. J., and BEAN and BURNETT, der indicated, we may say that there is no JJ., concur.

(85 Or. 26)

RANZAU v. DAVIS et al. (Supreme Court of Oregon. June 27, 1916.) 1. APPEAL AND ERROR 801(3)-SUFFICIENCY OF SURETIES.

On motion to dismiss, in the absence of legislative authority, the Supreme Court will not consider the sufficiency of the sureties upon the undertaking on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3162; Dec. Dig. 801(3).] 2. APPEAL AND ERROR 19-SUBSTANTIAL CONTROVERSY.

Suit to enjoin levy and sale of land on the ground that plaintiff is the true owner raises a substantial controversy whether plaintiff is the owner of the property, and whether, if it is found to be his, it can be subjected to payment of the debt of another, though the land has already been sold on execution and such sale confirmed.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 63-80; Dec. Dig. 19.]

In Banc. Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by Arthur J. Ranzau, by Dorothea V. Ranzau, his guardian ad litem, against J. C. Davis and William Esch, Sheriff of Marion County, Or. From a decree dismissing the

record before us upon which to base any conclusion as to the sufficiency of the sureties, and, if there were, counsel has failed to call our attention to any statutory provision authorizing us to pass upon such question, nor have we in our investigation been able to discover any. The right of appeal is purely statutory, and in the absence of legislative authority we must decline to consider the matter.

[2] The second contention is also without merit. The suit raises the issue as to whether, under the facts alleged, the plaintiff is the owner of the property, and whether, in the event it is found to be his, it can be subjected to the payment of the debt of another. The fact that it has already been so applied does not dispose of it, since if this court should reverse the decree the plaintiff would be entitled to restitution. The case of Dim

ick v. Latourette, 72 Or. 231, 143 Pac. 896, which is relied upon by the defendants, is not in point, since in that case a reversal of the decree could not have reached the money already paid.

The motion is therefore denied.

EAKIN, J., absent.

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

280

(81 Or. 72)

WEIGAR v. STEEN. (Supreme Court of Oregon. June 27, 1916.) 1. APPEAL AND ERROR FINDINGS OF FACT.

that year the balance remaining was $991.85, and on December 6th $81.85, which amount was attached by plaintiff in the original ac1010(1)-REVIEW-tion. At the time of the hearing the defendant swore that he had no money nor credit with which to satisfy the balance of the judgment; that the money had been spent in various ways. The Code provides that:

Upon an appeal from a cause tried to the court without a jury, the evidence will be reviewed only to ascertain if it is competent to support the findings, which will be sustained unless the evidence is insufficient as a matter of law to support them.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. 1010(1).].

2. EVIDENCE

UTE.

At such a hearing "either party may examine witnesses in his behalf, and if by such examination it appear that the judgment debtor has any property liable to execution, the court or judge before whom the proceeding takes place 67(1)-PRESUMPTIONS-STAT- shall make an order requiring the judgment debtor to apply the same in satisfaction of the judgment." Section 254, L. O. L.

Under L. O. L. § 799, subd. 33, providing. that a thing once proved to exist continues as long as is usual with things of that nature, evidence that defendant was in possession of a sum of money two years prior to the supplemental proceedings, which does not show how long it is usual for such persons or any one to retain a sum of money, is not aided by the disputable presumption declared by the statute, nor is it sufficient to show that defendant had the money until the time of the proceeding.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 87; Dec. Dig. 67(1).]

In Banc. Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by H. B. Weigar against Dan Steen. Judgment for plaintiff, and defendant appeals. Reversed.

This is an appeal by defendant from an order in proceedings supplemental to execution, requiring him to pay a balance of $800.44 on a judgment rendered September 20, 1915. On January 12, 1914, plaintiff filed in the circuit court his affidavit for an order for the examination of the defendant in supplemental proceedings under the provisions of section 253, L. O. L. The order was served on the latter January 13, 1914, but no hearing was had, and on November 10, 1914, a new affidavit for the examination of the defendant was filed. Hearing was had, and on February 3, 1915, he was ordered to pay the judgment.

O. P. Coshow, of Roseburg (J. J. Stanley, of Coquille, on the brief), for appellant. Walter Sinclair, of Coquille (A. H. Blachley, on the brief), for respondent.

count.

*

[1] Exception is taken by defendant to the introduction of immaterial evidence. Upon an appeal from a cause tried to the court without a jury, the evidence will be reviewed only to ascertain if it is competent to support the findings. 237, 143 Pac. 903.

Eugene v. Lowell, 72 Or. Findings of fact have the same force as the verdict of a jury and will be sustained unless the evidence is insufficient as a matter of law to support them. Norman v. Ellis, 74 Or. 168, 143 Pac. 1112; Smith v. Hurley, 73 Or. 268, 143 Pac. 1123.

[2] It is contended by counsel for defendant that the evidence is insufficient to support the findings. The possession of $5,970.60 by defendant on November 29, 1912, which amount had been reduced to $991.85, August 26, 1913, about two years prior to the supplemental proceedings in this case, is not sufficient to show that the defendant had a certain sum of money on November 28, 1914, the date of the service of the order herein, or thereafter, at the time of the hearing of the cause, February 3, 1915. The disputable presumption declared by subdivision 33 of section 799, L. O. L., that "a thing once proved to exist continues as long as is usual with things of that nature," does not aid the evidence or show that defendant retained the money during the lapse of time mentioned. The testimony does not show how long it is usual for persons like the defendant or any one to retain a certain sum of money. This principle is thoroughly discussed and plainly enunciated in Hammer v. Downing, 41 Or. 234, 66 Pac. 916, and in State ex rel. v. Gutridge, 46 Or. 215, 80 Pac. 98, and needs no There was no compefurther elucidation. tent evidence introduced upon the hearing of this cause to show that Dan Steen, the debtor, had any money or property liable to execution at the time of the hearing or when the order was made.

BEAN, J. The evidence consists largely of that of defendant Steen and the plaintiff, supplemented by the deposition of the cashier of the Douglas National Bank of Roseburg, regarding the defendant's bank acIt tends to show that the defendant, Dan Steen, sold a quarter section of land in November, 1912, for $6,000, and deposited $5,300 in the bank, making, together with the deposits he then had, $5,970.60. Various sums were withdrawn from the bank at difHARRIS, J., not sitting. ferent dates, and on March 20, 1913, defendant drew out $5,570.60. On August 26th of absent.

The judgment of the lower court will be reversed.

EAKIN, J.,

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

(Я Or. 75)

the city of Portland, for the price or sum of

NORTHWESTERN TRANSFER CO. v. IN- two thousand three hundred dollars ($2,300)

VESTMENT CO. et al.*

(Supreme Court of Oregon. June 27, 1916.) 1. CONTRACTS 147(1)-CONSTRUCTION-IN

TENT.

Under L. O. L. § 716, in the construction of written agreements, the intention of the parties is to be pursued, if it can possibly be done. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 730; Dec. Dig. 147 (1).] 2. PARTNERSHIP 5CREATION.

An agreement between several parties to build a house, containing no stipulation to share in the losses and profits of the business, establishing no community of interest between the parties in the subject-matter of the contract, and manifesting no intention of the parties to become partners, did not create a partnership. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 15, 16; Dec. Dig. 5.] 3. PARTNERSHIP

BER.

125-CHARACTER OF MEM

Each member of a partnership is a principal with a joint interest in the partnership property, and an agent of the other partners in dealing with third persons concerning partnership transactions.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. § 190; Dec. Dig. 125.] 4. PARTNERSHIP 159-NOTICE.

Notice to one partner, in reference to any matter relating to a transaction within the scope of the firm's business, is notice to all. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 293-295; Dec. Dig. 159.] 5. JOINT ADVENTURES ~4(4)—ADVANCES RIGHTS OF PARTY TO SELL.

* *

at any time within one year of the date hereof.
Parties of the first part agree at once to be-
gin the erection of a dwelling upon said lots
from the plans and specifications, signed by the
respective parties
under the direction
and superintendence of A. H. Faber, architect.
Investment Company agrees to furnish
towards the erection and completion of said
hundred dollars ($2,500) for the labor and ma-
dwelling a sum not exceeding two thousand five
terials as set forth in Schedule B hereto at-
tached. * * Said dwelling shall be sold
by the said parties of the first part as speedily
as possible and the proceeds thereof paid to the
said Investment Company, who shall execute a
good and sufficient title to the purchaser there-
of. The proceeds of such sale shall be divided
and distributed to those entitled thereto as
follows:

(1) The price of said lot shall be paid in full to said Investment Company.

(2) The amount of all advances shall be refunded to said company in full, together with interest thereon at the rate of 7 per cent. per annum from the date of such advancements.

(3) All taxes and insurance premiums paid by the said company subsequent to the commencement of said dwelling shall be treated as advancements and to be so paid.

(4) All outstanding bills for labor and materials other than those done or supplied by the parties of the first part shall be paid in full. ule A shall be paid to said parties of the first (5) The respective amounts set forth in Schedpart as compensation for the work or materials supplied by them.

(6) Any profit derived upon the sale of said house shall be divided among the said parties of the first part in the ratio that their respective contributions of work or materials bears to the Where an investment company agreed to sell whole amount so contributed, so shall their relots at a certain price, and agreed to and loan-spective dividends bear to the total profit realed money to the other parties to an agreement ized. for a joint venture in building a house for sale, and such other parties failed to purchase the lots or make any sale of the house and lots, the investment company was entitled to sell, substantially as in foreclosure, to obtain its ad

vances.

[Ed. Note.-For other cases, see Joint Adventures, Cent. Dig. § 6; Dec. Dig. 4(4).] Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Suit by the Northwestern Transfer Company, a corporation, against the Investment Company, a corporation, and others. From a decree for defendant Investment Company, plaintiff appeals. Decree affirmed.

This is a sult for an accounting. From a decree in favor of the defendant Investment Company, plaintiff appeals.

The transaction was about as follows: On November 1, 1908, the defendant Investment Company entered into a contract with the plaintiff and its codefendants, who are the same parties signing schedule A referred to in the complaint. The material parts of this agreement are as follows:

(7) Should any loss be incurred on such venture said Faber agrees that said loss shall be paid out of any sum or sums otherwise payable to him as set forth in Schedule A. Should such loss exceed said sums the same shall be ratably deducted from the other sums set forth in such schedule.

It is further agreed that should the house not be sold and disposed of within one year from date the said Investment Company may expose the same to public sale by open vendue or outcry and sell the same to the highest and best bidder and may at such sale become the purchaser thereof, any law prohibiting trustees purchasing at their own sale to the contrary notwithstanding."

By schedule A the Northwestern Transfer Company agreed to haul the stone for the construction of the building at the rate of $3.50 a ton and to advance the freight which amounted to $1,249, with which it complied. Pursuant to the terms of the agreement defendant advanced the sum of $2,500 to the first parties who commenced the erection and construction of the dwelling house upon the lots as therein provided, under the directions of A. H. Faber, architect. After that amount was exhausted the first parties applied to the defendant company for financial assistance, and at their special instance and request it advanced other sums of money Witnesseth: Party of the second part agrees tinued the time in which the dwelling should under the agreement and extended and conto sell to parties of the first part * * * lots Nos. 7 and 8, Block No. 23, Piedmont, in be completed for a greater period than speciFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied July 25, 1916.

"This agreement made * between the parties signing Schedule A hereto attached, herein described, parties of the first part, and the Investment Company, * party of the second part.

fied in the contract. The total advancements | ever, it cannot avoid the acts of its copartmade by the defendant to the first parties, ners in dealing with the Investment Comtogether with the price of the lots. with in-pany in this case by asserting that it had terest thereon, aggregated $13,136.40. The no knowledge of them, for the reason that first parties did not sell the house as con- notice to one partner in reference to any templated by the contract, but allowed the matter relating to a transaction within the same to remain unoccupied and to deterio- scope of the firm's business is notice to all rate in value, and for more than four years of them. 30 Cyc. 530. made no attempt to provide means with which to repay defendant for its advances. Pursuant to the terms of the contract the Investment Company, after advertising the house and lots for sale and after due notice to the several parties of the first part, on June 21, 1913, exposed the property for sale publicly to the highest bidder and purchased it for $12,300, which was insufficient, it is alleged, to pay it the purchase price of the lots and the advancements in money.

F. B. Woodruff, of Portland (Emmons & Emmons, of Portland, on the brief), for appellant. Franklin F. Korell and Earl C. Bronaugh, both of Portland (Bronaugh & Bronaugh, of Portland, on the brief), for respondent.

BEAN, J. (after stating the facts as above). [1-3] It is the contention of plaintiff that in accordance with the terms of the contract a partnership was created between the parties of the first part and the Investment Company and that the latter, after purchasing the property, held it in trust for the other parties. Section 715, L. O. L.; Egan v. Oakland Ins. Co., 29 Or. 403, 411, 42 Pac. 990, 54 Am. St. Rep. 798. In the construction of written agreements the intention of the parties is to be pursued if that can possibly be done. Section 716, L. O. L.; Weidert v. State Ins. Co., 19 Or. 261, 270, 24 Pac. 242, 20 Am. St. Rep. 809. The agreement entered into between the parties in this case does not establish a partnership between the plaintiff and the defendant Investment Company, for the following reasons: (1) There is no stipulation to share in the profits and losses of the business. Hanthorn v. Quinn, 42 Or. 1, 7, 69 Pac. 817. (2) There is no community of interest between the parties in the subjectmatter of the contract. Shebley v. Quatman, 66 Or. 446, 134 Pac. 68. And (3) there is no intention manifested by the parties to become partners. North Pac. Lbr. Co. v. Spore, 44 Or. 462, 470, 75 Pac. 890. There was, however, a partnership created between the other parties signing schedule A, including the plaintiff. Accordingly each member thereof is a principal having a joint interest in the partnership property and an agent of his assistants in dealing with third persons concerning partnership transactions. Hanthorn v. Quinn, supra.

[5] According to the terms of the contract and the evidence in the case, the Investment Company agreed to sell the lots mentioned at a certain price, and agreed to and did loan money to the other parties to the agreement who entered into a joint venture in building a house for sale. It may not have been a wise contract for the plaintiff to make; but that is a matter solely for it as the court cannot stipulate for it. The parties of the first part, as they are generally termed, having failed to purchase the lots or only thing remaining for the defendant to do make any sale of the house and lots, the was to sell the same substantially as in a foreclosure in order to obtain its just dues.

It is complained that the Investment Company charged interest on the price of the lots to which it was not entitled, but it is not necessary to discuss this matter as without such interest there would still be left an amount greater than that bid for the lots. In order to do equity, the parties interested should pay the amount due to the Investment Company or redeem the property. There is little controversy in regard to the facts in this case. The construction of the contract of the parties determines the issue. The decree of the lower court was correct and is affirmed.

KNIGHTS AND LADIES OF SECURITY v.
CONSIDINE et ux. (No. 8639.)

(Supreme Court of Colorado. May 1, 1916.
Rehearing Denied July 3, 1916.)

1. INSURANCE 723(5)— LIFE INSURANCE BREACH OF WARRANTY.

Where an applicant for membership in a fraternal order falsely stated in his application that he was not afflicted with disease, had not five years, and had not undergone any surgical been treated by a physician and surgeon within operation, etc., which answers and statements were warranted by him to be true by the terms of the application, his beneficiaries were not. entitled to recover for his death on the certificate issued to him.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1863; Dec. Dig. 723(5).] 2. INSURANCE 723(5)- LIFE INSURANCE FAILURE TO READ APPLICATION-EFFECT.

Where an applicant for membership in a fraternal benefit order did not ask to read his application and answers before or after he sign

[4] The plaintiff complains that it was noted it, and was not prevented from so doing, his consulted nor advised as to advances made failure to read it did not void the consequences by the defendant to the first parties. How- of his false statements in the application relative