the payment should be reversed, and a retrial ordered. THORNTON, J., dissenting, holds that the court should ascertain, by inspection of the judgment roll in the earlier action, whether the payment was allowed in that action, and, if so, affirm the judgment in this, in order to avoid the necessity for a new trial.

In bank. Appeal from superior court, Santa Cruz county.

S. C. Houghton and Chas. B. Younger, for appellants. Bart Burke and Goldsby & Jeter, for respondents.

PATERSON, J. This action was brought by the plaintiffs to recover of the defendants the value of certain lumber manufactured by them out of trees cut from land of the plaintiffs, during the months of September and October, 1882, and June, 1883, pursuant to the provisions of a certain contract in writing made by and between the respective parties on the eleventh day of April, 1881. In respect to the averments of the complaint, the answer of the defendants only put in issue the quantity of lumber manufactured by them during the months mentioned, and the plaintiffs, upon the trial, were content to rest upon the admissions in that particular. But defendants pleaded in their answer that they had paid to plaintiffs, in advance, on the thirty-first of December, 1881, the sum of $1,225.88 on account of said lumber so cut, and $75.73 in boarding an agent of plaintiffs' at defendants' mill, during the times mentioned in the complaint, and pursuant to the terms of the contract. These allegations of the answer being deemed denied, defendants at the trial proved the payment to plaintiffs, on December 31, 1881, of $1,225.88; and, in rebuttal, plaintiffs, against the objection and exception of defendants, were permitted to introduce in evidence the complaint and answer in a case, brought by the same plaintiffs against the same defendants, under the same contract, for stumpage claimed by plaintiffs to be due thereunder for the month of November, 1882, and to and including the month of May, 1883, and in which action defendants by their said answer pleaded the same payment of $1,225.88; and plaintiffs herein also gave evidence tending to show that on the trial of the last-mentioned action proof was given of the said payment.

In the present case the court below found “(5) that on the thirty-first day of December, 1881, said defendants paid to said plaintiffs, in advance, for and on account of timber to be cut under said contract and taken from said lands of said plaintiffs, the sum of twelve hundred and twenty-five dollars and eighty-eight cents; (6) which said payment was claimed by the said defendants, and allowed by the court, in a certain action numbered 636, wherein said W. W. Waterman and J. B. Waterman were plaintiffs, and said E. B. Morrell and Jacob Spidell were defendants, tried before this court on the twentyfourth day of September, 1883, upon the same contract, for money due and owing to said plaintiffs from said defendants for lumber manufactured and shipped by defendants from said lands of plaintiffs for and during the period from November 1, 1882, to June 1, 1883.'

The points of appellants are--First, that the evidence in relation to the former suit of plaintiffs against defendants was irrelevant and immaterial; and, second, that it was insufficient to justify the sixth finding. The former suit was between the same parties, upon the same contract, and for the value of lumber manufactured by defendants, pursuant to its terms, from November 1, 1882, to June 1, 1883. The payment in question was made under the contract, in advance and on December 31, 1881. If it was deducted from the amount due from defendants to plaintiffs for the lumber manufactured by the former during the period involved in the former suit, surely it ought not to be deducted from the amount due plaintiffs for the lumber manufactured by defendants during the period involved in the present action; for that would be to allow defendants double credit for one payment. Respondents claim that the said payment having been pleaded in bar pro tanto in the former action, and being there in issue, defendants, as well as plaintiffs, are bound by

the final result thereof, whatever it was, and therefore the circumstance that there was no evidence in the present case that the payment in question was allowed defendants in the former one is not important, although it is stated in the findings of the court below that it was so allowed. We think, however, that, before the defendants can be estopped in this case from claiming the benefit of their plea of payment, it must appear that they have had the benefit of the payment pleaded in the former suit. This can be shown only by the record itself, and cannot be presumed from the fact that an issue has been made and tried in the former action. It must be shown that such issue has been determined on its merits; that the suit has culminated in a final judgment. The trial of the former suit occurred September 24 to 26, 1883. This action was tried September 26, 1883. The record in the former suit, therefore, could not operate as a bar to a recovery in this case. There was no final adjudication at the time this cause was tried.

Upon the testimony given in this case, in connection with the record of the former action, showing that the payments alleged in both were identical, and that the defendants were seeking a double benefit therefor on different installments due under the same contract, the court below would have been authorized to withhold its decision in this case until the merits of the plea of payment in the former action had been finally adjudicated. This was not done, however, but the case went to judgment, and an appeal therefrom has been taken to this court. We see no way of securing the rights of all parties except by a retrial in the court below.

The judgment and order are reversed, and the cause is remanded for a new trial, with instructions to proceed in accordance with the views herein expressed.

We concur: TEMPLE, J.; SHARPSTEIN, J.; MCFARLAND, J.; MCKINSTRY, J.

THORNTON, J., (dissenting.) I dissent. I am of opinion that the fact was substantially found on the issue of the payment pleaded. The finding is that there was no payment. When a cause between the same parties has been tried in which the same payment was pleaded, and the issue tried, the trial commencing on the twenty-fourth of September, 1883, and continuing until the twenty-sixth, and the trial of a cause between the same parties, commencing on the twenty-sixth of September, 1883, in which the same payment is also pleaded and the issues tried, and the court finds that the payment was allowed in the action first tried, it is equivalent to a finding that no payment has been made in the action on trial. See findings set forth in the opinion of the court. It is said that there is no evidence which sustained the finding that there is no payment or that it was allowed in the cause first tried, because it does not appear by findings filed that the payment was allowed in such action. But there was suflicient evidence before the court to show that the payment should not be allowed in this cause, and in my opinion the court so finds. The record shows that the two actions were on the same contract, and that the same payment was pleaded in both, and that there was evidence of the payment in the other case. It is conceded that, if allowed in both cases, it would be allowed twice. This was evidence enough to justify a finding of the payment in the action first tried, and to authorize a finding against it in this action; which finding in my opinion was made. We have a right to presume that the findings have been long since filed in the cause first tried; and this court has the power under the constitution to send an order to the clerk of the trial court to have the judgment roll certified to this court, and to inspect it; and, if it appears that the payment was allowed in that cause, to affirm the judgment in this. This obviates the necessity of sending this cause back for a new trial, which trial must be a mere form, causing unnecessary expense to the parties.

(14 Or. 382)

MARKS and others v. CROW and another.

(Supreme Court of Oregon. January 14, 1887.)

1. EQUITY-PRACTICE-TRIAL-EXCEPTIONS-SESS. LAWS OR. 1885, PAGE 69.

Under Sess. Laws Or. 1885, p. 69, amending the practice as to trials in equity, and providing for a trial by the court in the manner of trials at law by the court, a party desiring a review of a decision should preface a statement of the exceptions taken at the trial with sufficient evidence to explain them, and, if he wants the facts reviewed, should specify in the statement his objections to the findings, and include in it all the evidence upon which the findings are made.

2. SAME-EVIDENCE-DEPOSITIONS-REFERENCE.

Sess. Laws Or. 1885, p. 69, leaves no provision for taking the deposition of a witness in an equity case, even de bene esse, unless a reference is ordered.

3. SAME AMENDMENT OF STATUTE PENDING SUIT-EFFECT.

When the statute regulating practice is amended pending an action or suit, proceedings had after the amendment goes into effect should conform to the amendment, but the amendment will not affect anything done before.

4. FRAUDULENT CONVEYANCES-CHANGE OF POSSESSION-EVIDENCE-GROSS STATEMENT OF INDEBTEDNESS.

A transfer of property, without change of possession, from one member of a family to another, at a time when the transferrer is indebted to outside parties, cannot be upheld as against the outside creditors, by a general statement of indebtedness in a gross sum named as the consideration for the conveyance. If the parties cannot give a rational and circumstantial account of how the indebtedness arose, and how the amount claimed is made up, the presumption of fraud should be allowed to prevail. Held, upon the evidence in this case, that a finding of fraud by the court below was justified upon this principle.

A conveyance is fraudulent, as against a debt not contracted at the date thereof, if the parties then had in view the creation of the debt, and intended to defraud the creditor; and such intention may be inferred from a false claim made in regard to the consideration for the conveyance, and other circumstantial evidence.

Appeal from circuit court, Douglas county.

Suit in equity to subject real property to a judgment. Decree for complainants. Defendants appeal.

John Burnett, John Kelsay, and J. J. Walton, for appellants. Jones, for respondents.

Willis &

THAYER, J. The respondents commenced a suit in the court below to subject certain real property, situate in said county, to the payment of a certain judgment, recovered by the respondents in an action at law in said court against the appellant H. G. Crow, on the nineteenth day of January, 1884, for the sum of $623.94, and costs of action. The judgment was recovered upon an indebtedness due from said appellant to the respondents, alleged to have been contracted between January 1, 1877, and 1881. It appears that during said time the said appellant was the owner of the said real property, and that he continued to own the same until the twenty-sixth day of February, 1883, when he executed a deed to the same to the appellant E. J. Crow, who is his brother. The real object of the suit was to declare this deed fraudulent and void as against the respondents' judgment, and the main question in the case is whether the deed was executed in good faith and for a valuable consideration. It appears from the transcript that on the twenty-second day of October, 1879, the said H. G. Crow executed to E. J. Crow a promissory note for $6,500, payable six months after date, with interest at the rate of 1 per cent. per month, and, to secure its payment, executed a mortgage upon the land in suit; that about the twenty-fifth day of October, 1880, the respondents held a note against said H. G. Crow, secured by a mortgage upon real property, upon which there was at that time due the sum of $632.57, and at that date said E. J. Crow called upon respondents and paid it off, and took a transfer of the claim to himself; and that within a day or two from that time said H.

G. Crow confessed judgment upon the note in said circuit court, and at or about the same time also confessed judgment to the said E. J. Crow upon the note and mortgage of October 22, 1879, to the amount of $7,706.80, which two judgments were duly entered in said court. Four thousand dollars of this alleged indebtedness is claimed by the appellants to be the consideration of said deed. The remainder of it is admitted by the appellants to have been liquidated by the said H. G. Crow. The circuit court, after hearing the proofs and evidence, found the following facts: "(1) The promissory note, dated October 22, 1879, for $6,500, described in the complaint, and the mortgage given to secure the same by defendant H. G. Crow to his brother, E. J. Crow, was without consideration, and was made and accepted by said defendants to hinder, delay, and defraud the creditors of said defendant H. G. Crow. (2) That on October 28, 1880, defendant H. G. Crow confessed judginent in favor of E. J. Crow for $7,706.80, upon said note and mortgage; that said judgment was without consideration and false and fraudulent, and made and taken for the purpose of hindering and delaying the creditors of H. G. Crow. (3) It is not true that on or about October 25, 1880, the defendant H. G. Crow, with intent to hinder, delay, or defraud his creditors, furnished the money therefor, or caused the defendant E. J. Crow to purchase from S. Marks & Co., the plaintiffs, the note and mortgage of H. G. Crow to said Marks & Co., of date January 12, 1878, for $421.07, as mentioned in the complaint; but the same was purchased by said E. J. Crow with his own money. (4) It is not true that the judgment confessed by said defendant H. G. Crow in favor of defendant E. J. Crow on the twenty-seventh day of October, 1880, for the sum of $632.57, upon the note and mortgage mentioned in my third finding of facts, was made or taken with the intent to hinder, delay, or defraud the creditors of defendant H. G. Crow. (5) That the deed of conveyance of the real property described in the complaint, executed by H. G. Crow to E. J. Crow on the twenty-sixth day of February, 1883, was executed and received by the parties thereto for the purpose of hindering and delaying the creditors of said H. G. Crow. (6) The said H. G. Crow has remained in the exclusive possession of the real property described in the complaint since the date of the deed of February 26, 1883, from himself to E. J. Crow, and has received the exclusive benefits and proceeds of said land; and there was or is no agreement between himself and said E. J. Crow by which he should account to said E. J. Crow for any parts of the rents and profits of said lands; but he has ever since the date of said deed, and is now, receiving the sole and exclusive benefits of the land and the income therefrom." And thereupon found as conclusions of law that the deed of February, 1883, should be set aside, the land sold, and the proceeds applied (1) to the payment of the judgment in favor of said E. J. Crow against H. G. Crow for $637.57, recovered October 27, 1880; (2) to the payment of the respondents' judgment.

The respondents' counsel contends that the findings of the court are conclusive as to the facts, the same not having been excepted to as provided in the amendment of section 393, Civil Code, adopted at the session of the legislative assembly in 1885. Sess. Laws 1885, p. 69. This amendment was passed after the suit was commenced, and took effect before the hearing was had, and before the testimony was all taken; but the part of the testimony taken after the amendment went into effect related simply to the rebuttal of certain impeaching evidence, and was given orally before the court. Aside from this, all the testimony was taken by deposition in accordance with section 393 of the Civil Code, as amended in 1874. Sess. Laws 1874, pp. 84, 85. The question then arises as to the effect of the amendment of 1885 above referred to. It provides "that all issues of facts in suits in equity may be tried by the court. The evidence shall be presented and the trial conducted in the same manner as actions at law: provided, that the court may, in its discretion, refer the case to a referee, pursuant to the provisions of section 805 of

Or.]

MARKS V. CROW.

this Code. That in all suits the court, in rendering its decisions therein, shall set out in writing its findings of fact upon all the material issues of fact presented by the pleadings, together with its conclusions of law thereon; but such findings of fact and conclusions of law shall be separate from the decree, and shall be filed with the clerk, and shall be incorporated in, and constitute And such findings of fact shall a part of, the judgment roll of said case. have the same force and effect and be equally conclusive as the verdict of a jury in an action at law. Exceptions may be taken during the trial to the ruling of the court, and also to the findings of fact; and a statement of such exceptions prepared and settled as in actions of law; and the same shall be filed with the clerk within ten days from the entering of the decree, or such further time as the court may allow." This amendment was evidently intended to permit the court to proceed and try a suit in equity in the same manner as a case at law is tried where a jury trial is waived. The provision in regard to taking exceptions is not explicit. Exceptions to findings of fact cannot be taken during the trial, as the language of the provision would seem to require. Exceptions of that character cannot, in the nature of things, be The New York Code at one time taken until after the decision is rendered. provided, and probably does yet, that a notice containing the exceptions to the findings should be filed within 10 days after the entry of the decision; but that mode does not seem to be contemplated by this amendment, though I supposed, the first time I inspected it, that it did. The only construction to be given the amendment, as I can see, is to allow the party desiring a review of the decision to prepare a statement of the exceptions taken at the trial, with sufficient evidence to explain them, and, if he wants the facts reviewed, to specify his objections to the findings in the statement, and include in it all the evidence upon which they were found. The amendment also has a broader effect than may generally be supposed. Section 393 of the Code, as amended in 1874, provided that as soon as the pleadings were completed, if the suit be at issue on a question of fact, the parties might proceed and take the depositions of witnesses to be offered on the trial. Said section, as amended in 1885, operates as a repeal of that provision, and also of all matters contained therein authorizing the appointment of a short-hand reporter. This amendment, and the amendment of section 805, leave no provision, as I can see, for taking the deposition of a witness in an equity case, even de bene esse, unless a reference is ordered to find the fact or facts and law. I am not inclined to think, however, that this amendment affected depositions that had I think the rule should be, where been taken prior to its going into effect. the Code is amended pending an action or suit, that the proceedings had in accordance with the provisions thereof in force at the time should be held valid, and that those taken after the amendment goes into effect should be in conformity therewith. If this view is correct, the depositions should be considered in determining whether the findings are supported by the proofs.

The appellant's counsel contend that there is no evidence in the case showing that the deed of February 26, 1883, was executed by the said H. G. Crow to the said E. J. Crow to hinder, delay, or defraud the creditors of the said H. G. Crow. This is undoubtedly true, if the said H. G. Crow was, on the twenty-second day of October, 1879, justly indebted to the said E. J. Crow in the sum of $6,500, and the promissory note executed for that sum by the former to the latter of that date was an honest transaction. The validity of said deed, and of the judgment confessed by the said H. G. Crow to the said E. J. Crow on the twenty-eighth day of October, 1880, for the sum of $7,706.80, hinges upon the truth of that matter. It must be conceded that the evidence does not directly show but that E. J. Crow did loan to the said H. G. Crow the amount of money claimed to have been so loaned, and, unless of it can be inferred that their account of the affair is a subterfuge, it must be credited. It appears that H. G. Crow is the senior, by a number of years,