A. Yes. He was sick, and his sons took care | If either of the Hollopeters had paid the of him. He had lost all through his trades." The daughter, Mrs. Cadle, testified that he had softening of the brain and was in bed eight months prior to his death; that for the previous three or four months he was suffering from a stroke of paralysis. "Q. What was the condition of your father's health for the year or two years prior to his death? A. Well, I would say for three years before papa's death he was not himself at all. He died from softening of the brain, and had been taken away from his work about three years before, I would say. He was not capable of attending to his business at all. "Q. He was not doing any business during the entire year of 1915? A. No, sir. note to the bank prior to January 6, 1916, they would then have been entitled to its possession, and in the ordinary course of business the bank would have delivered it to them. The Hollopeters knew that the bank held the note as collateral. During that period, any payment should have been made to the bank. Having such knowledge, the testimony as to the payment direct to Apple should be clear and convincing. There is no evidence that any one ever claimed to have paid the note to him, or as to when it was paid, or how it was paid. The decree of the circuit court will be reversed, and one entered here against the estate of Eunice E. Hollopeter in favor of Apple, for the full amount of his note, with accrued inter "Q. Did he make any payments on this note during the year 1915? A. No; I know noth-est, without costs to either party in this ing about it. "Q. If any payments were made on the note it must have been made before that? A. Yes; he couldn't have made any during that time." It is true that there is testimony of the daughter and the nurse, tending to show that the mother had said the note was paid; but there is no evidence that she ever claimed to have paid it, or as to when, how, or by whom it was paid. After the doctor's sickness the Hollopeters were in straitened circumstances, and never had the money to pay the note, and the only assets of either of them were the $2,000, life insurance, which was collected by the widow after his death. The bank records show that both of them were notified at the maturity of the note on February 11, 1915, and that it was then protested for nonpayment. There is no evidence of any claim that the note was then paid, or of any protest or objection by either of the Hollopeters, to the receipt of that notice. Dr. Hollopeter knew that the note was in the bank. It was there he made his interest payments, and the testimony is conclusive that the note remained in the bank until some time after his death. court, or the county or the circuit court. MCBRIDE, C. J., and HARRIS and BURNETT, JJ., concur. (98 Or. 310) RICHMOND v. WHITE et al. (Supreme Court of Oregon. Dec. 21, 1920.) Appeal and error 161-Transfer of property adjudicated to party waived right of appeal. Where in suit for accounting by landlord against tenant renting on shares the effect of the court's decision was to give tenant credit for property which he purchased and paid for, but which landlord should have purchased, leaving title to the property in landlord, a transfer after oral decision, but before entry of decree by the landlord, of the leased premises, including the property adjudicated to landlord, waived the right to appeal, though it was also decided that the lease continued for several years longer, and the landlord's deed warranted against incumbrances, which warranty, however, was obviated by contemporaneous contract by grancluded from the operation of warranty. tees that tenant's occupancy was to be ex In Banc. Appeal from Circuit Court, Gilliam County; D. R. Parker, Judge. Action by J. A. Richmond against J. B. White and another. From the decree rendered, plaintiff appeals, and the named defendant moves to dismiss the appeal. Appeal When analyzed, the evidence of the payment of the note is founded upon inference and suspicions, largely growing out of the actions and conduct of Apple and the manner in which he testified, all of which, standing alone, might be construed as sufficient evidence of payment. But the stubborn fact remains that soon after its execution the note was deposited in the bank as collateral, where it remained until the 6th of January, 1916; that C. M. Hollopeter died in December, 1915; that he made the three interest payments to the bank, which are credited upon the note; that its records show, and its officers testify, that he never made any other payment to the bank, and that at its maturity, on February 11, 1915, HARRIS, J. J. A. Richmond, the plaintiff, the note was duly protested for nonpayment. owned a wheat farm embracing 1,480 acres dismissed. John W. Kaste, of Portland, for appellant. T. A. Weinke, of Condon (G. E. Hamaker, of Portland, on the brief), for respondents. (193 P.) White that Richmond agreed "to furnish for the use of the defendant and said S. G. Potter on said farm" certain items of farm machinery and equipment specifically enumerated in the answer; that Richmond failed to furnish some of these items; and that because of such failure it became necessary for White to buy some of the items and to hire others at an expense of $4,601.35 in order to save the crop in 1918. White was living on a farm in Washington owned by Richmond; and from there White moved to Richmond's farm in Gilliam county. White averred that he owned certain personal property on the Washington farm, and that he left this personal property on the Washington farm for Richmond with the understanding that Richmond would deliver like property on the Oregon farm for White; that Richmond failed to keep his agreement to the damage of White in the sum of $662. in Gilliam county. About October 1, 1917, [ number of counterclaims. It was alleged by S. G. Potter and the defendant J. B. White entered upon the farm as tenants of Richmond, with the understanding that, after first deducting sufficient wheat for feeding and seeding, Richmond should receive as rental one-half of the wheat grown on the premises. At some time prior to the harvesting of the 1918 crop, White and Potter dissolved their interests and adjusted their affairs, and, with the consent of Richmond, Potter retired and left White as the sole tenant for 1918. White did not leave the farm in 1918, but remained on the premises and sowed and harvested a crop for 1919. On November 10, 1919, Richmond began this suit for an accounting against White and the Condon National Bank. The bank was in no wise interested, except as a holder of $4,198.08, which it had received as proceeds of the sale of some of the wheat. White had hauled Richmond's share of the wheat to a warehouse, and, according to the contention of Richmond, White sent to Richmond the warehouse receipts for Richmond's share of the wheat. Richmond says that he then sent the receipts to the bank with directions to sell the wheat. The bank followed directions, sold the wheat, and received $4,198.08 for it. The bank alleges that, when it learned that there was some controversy between Richmond and White about these moneys, it executed a certificate of deposit payable to the order of Richmond and White; and the bank declared that it made no claim to the moneys, but simply held them for whomsoever might be entitled to receive them. Richmond says in his complaint that in September, 1917, he leased the farm to White and Potter for one crop season ending October 1, 1918, with the further understanding that, if the premises were farmed in accordance with the agreement and in a manner satisfactory to Richmond, he would enter into a written agreement leasing the farm to White and Potter for a term of four years. White asserted that Richmond leased the premises to White and Potter for a period of five years from January 1, 1918, and that it was also agreed that White and Potter should immediately enter into possession of the farm, and that Richmond should, as soon as he could, prepare a writing evidencing the terms of the agreement. Richmond asked in his complaint that White be required to account for the wheat raised in 1918 and 1919; for 8 brood sows and 25 shoats alleged to have been killed by White; for pasturing and feeding certain stock; for barley raised in 1918; for failure to stack the straw; and for neglect to keep the buildings, fences, and equipment in repair. White answered by claiming that he had accounted to Richmond for his full share of the crops. White's answer also contained a White also claimed that he was entitled to receive 25 cents per sack, or a total of $288.55, for hauling Richmond's share of the 1918 crop to the warehouse. There was an additional further and separate answer and defense in which White asked that Richmond be required specifically to perform and to execute and deliver a writing evidencing the agreement. The trial court found that Richmond made no claim to the personal property left by White on the Washington farm, and that White was the sole owner of that personal property, and hence no allowance was made to White on account of that property. The court further found that the leasehold agreement was as alleged by White, and that the lease was for a term of five years from January 1, 1918, that Richmond agreed to furnish the items of farm machinery and equipment as alleged by White, but that, because of the failure of Richmond to keep his agreement in this respect, White had been obliged at his own expense to buy and hire such machinery and equipment. The trial court charged White with $7,214.79 as the value of Richmond's share of the wheat, and credited White with $6,332.90, leaving a balance of $881.89 due Richmond from White, and included among the credits were the items of machinery and equipment which White had purchased after Richmond had failed to furnish them. The court rendered a personal money decree against the bank in favor of White for the sum of $3,316.19, together with costs and disbursements amounting to $46.10, and a like decree against the bank in favor of Richmond for the sum of $820.79, and allowed the bank $15 for its costs and disbursements, thus disposing of all the moneys held by the bank as stakeholder. Richmond appealed. White has moved to dismiss the appeal on the ground that Rich mond has accepted the benefits of the decree | having been shown that the Powells were the and has ratified it. The record shows that, when the parties concluded offering their evidence and rested, the circuit judge stated orally in open court, on March 18, 1920, that he was prepared to decide the case at once, but in order to give the parties an opportunity to adjust their differences he would postpone announcement of his decision until that evening. A written decision and decree were not filed, however, until April 27, 1920. Richmond took his initial step towards an appeal by serving notice of appeal on June 17, 1920. On March 29, 1920, Richmond and his wife, by a warranty deed, conveyed the Gilliam county farm to W. S. Powell and Roy Powell. The deed contains a covenant that the premises "are free from all incumbrances, except a mortgage for $15,000." Contemporaneously with the execution of the deed and as a part of the same transaction another writing was prepared, and it was signed by J. A. Richmond together with W. S. Powell and Roy Powell. This instrument contains a number of preliminary recitals. The first recital mentions the conveyance of the farm to the Powells. The second recital declares that White and Potter "are now in occupancy of said ranch claiming and asserting their right to possession thereto for an unexpired period." The third recital refers to "the decision of the circuit court" rendered "in the cause of" Richmond against White and the Condon National Bank. The fourth recital declares that "it is the intention of" Richmond and his wife that the Powells "shall be vested with all the rights, title, claims, or interest which the said John A. Richmond has or claims to have in or to said premises, all personal property and also claims and rights of action against the said J. B. White arising from any cause whatsoever." These recitals are followed by the declaration that Rich mond does "hereby sell, assign, and transfer unto the said W. S. Powell and Roy Powell the said claim of $2,000 above described due and owing to him from the said J. B. White, also any other cause or causes of action which the said John A. Richmond now has or claims to have against the said J. B. White by reason of said J. B. White's occupancy of said premises, and in consideration there of the said W.. S. Powell and Roy Powell have purchased said premises subject to the occupancy of the said J. B. White and S. G. Potter, and hereby agree to hold the said John A. Richmond and Florence S. Richmond harmless from any claim for damages by reason of the warranties contained and re cited in their warranty deed other than as to title." At some time in April, 1920, the Powells informed White that they had purchased the owners of the premises and personal property, attorned to the Powells. The Powells made an affidavit in which they say they purchased from Richmond all the personal property on the farm, including the items which White had bought and the court had charged against Richmond. Attached to this affidavit is a copy of the bill of sale and a copy of the memorandum which the Powells say "is part and parcel of the" bill of sale. The memorandum itemizes the articles which the Powells aver they purchased from Richmond; and among the items are those purchased by White and charged to Richmond in this suit. On September 25, 1920, the Powells leased the farm to White for a term of two years, beginning with September 15, 1920, and ending September 15, 1922. Contemporaneously with the execution of this lease Powells gave to White a bill of sale for all of the personal property. It will be remembered that the deed from Richmond to the Powells contains a covenant warranting the farm against all incumbrances, except a mortgage of $15,000. It will also be recalled that the trial court decreed that White had a lease on the farm for a term of five years. Richmond now argues that this appeal cannot be dismissed for the reason that the leasehold estate decreed by the trial court constitutes an incumbrance, and that he is entitled to maintain this appeal so as to free himself from liability on his covenant of warranty. The answer to this argument of the plaintiff is found in the writing which Richmond and the Powells signed as a part of the transaction; for it will be remembered that in that writing Powells purchased the farm "subject to the oc cupancy of" White and Potter, and that the Powells also expressly agreed to hold Richmond "harmless from any claim for damages by reason of the warranties contained and recited in their warranty deed other than as to title." Moreover, White's leasehold agreement with Richmond was extinguished when he entered into the agreement of September 25th with the Powells. The decree of the trial court in effect said to Richmond: "You did not furnish certain items which you agreed to furnish; and, because you did not furnish them, White was obliged to buy them. Now, since White did for you what you should have done for yourself, you must reimburse White, and the items purchased by White will therefore be treated as your property. In other words, White had a right to buy and charge to you what you should have furnished, but did not furnish." One of the issues in this suit was whether White was entitled to charge Richmond for the items purchased by White. Richmond (193 P.) dealt with the personal property what the court had orally decided, although the written decision had not yet been filed; for there is a recital in the writing expressly referring to the "decision." The writing states that "it is the intention of" Richmond to vest all the right which Richmond "has or claims to have in and to said premises, all personal property, and also all claims and rights of action against the said J. B. White arising from any cause whatsoever." Richmond cannot complain that the lease decreed by the court is an incumbrance for which he is liable, for the Powells expressly agreed that the occupancy of White and Potter was to be excluded from the operation of the warranty, and, moreover, the decreed lease was extinguished when White leased directly from the Powells, and, furthermore, Richmond cannot now complain about that part of the decree which relates to the personal property and to the claims made by him against White, for he has submitted to that part of the decree. The appeal is dismissed. (98 Or. 649) FIRST NAT. BANK OF VALE v. HALLIDAY et al.* (Supreme Court of Oregon. Dec. 21, 1920.) I. Appeal and error 414-"Adverse party" as respects notice of appeal defined. An "adverse party," with reference to the requisite of service of notice of appeal under L. O. L. § 550, is a plaintiff or defendant whose interest in regard to the judgment or decree appealed from is in conflict with a reversal or modification of the judgment or decree sought to be reviewed on appeal. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Adverse Party.] 2. Appeal and error 414-In suit to set aside fraudulent conveyance from mother to son, mother held "adverse party" as respects son. In suit by judgment creditor of a mother to set aside as fraudulent a conveyance by the mother to the son, where the son appealed from a judgment setting aside the conveyance and subjecting the property to the judgment, subject, however, to a lien in favor of the son for money paid upon a superior mortgage and other claims, the mother, who had appeared in the suit, was, as respects the requirement of L. O. L. § 550, of service of notice of appeal, an adverse party, and where the son did not serve notice of appeal on her, his appeal must be dismissed. In Banc. Suit by the First National Bank of Vale against Emma H. Halliday and Wilbur A. Halliday. From decree for plaintiff, the last-named defendant appeals, and plaintiff moves to dismiss the appeal. Appeal dismissed. In substance, this is a suit against Emma H. Halliday and her foster son, Wilbur A. Halliday, to set aside a mortgage and a subsequent deed of certain real property given by the mother to the son, and to subject the same to the payment of a judgment against her in favor of the plaintiff. The land was subject to the lien of a mortgage in favor of Balfour, Guthrie & Co., about the priority of which there is no dispute. The son asserted the validity of the mortgage and deed from the mother. The result of the litigation in the circuit court was a decree setting aside the deed and mortgage and subjecting the realty to the payment of the plaintiff's judgment, subject, however, to a lien in favor of the son for money paid upon the admittedly superior mortgage of Balfour, Guthrie & Co. and for some other claims. From this decree the son appealed, but did not serve the notice thereof upon the mother, although she had appeared in the suit. The plaintiff now moves to dismiss the appeal on that account. O. B. Mount, of Baker, for appellant. George W. Hayes, of Vale, for respondent. BURNETT, J. (after stating the facts as above). [1] It is required by section 550, Or. L., that: "The party desiring to appeal may cause a notice signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney. It is also a rule established by our decisions that an adverse party with reference to the requisite of service of notice of appeal is a plaintiff or defendant whose interest in regard to the judgment or decree appealed from is in conflict with a reversal or modification of the judgment or decree sought to be reviewed on appeal. Van Zandt v. Parson, 81 Or. 453, 159 Pac. 1153; French v. McKean, 81 Or. 683, 160 Pac. 1151; In re Waters of Chewauncan River, 89 Or. 659, 171 Pac. 402, 175 Pac. 421. [2] According to the complaint and resultant decree, Mrs. Halliday is liable on the judgment against her, to the payment of which it is sought by this suit to subject the property in question. The decree thus provides the means for realizing a fund applicable to the payment of her personal obligation. It does not appear that she is personally obligated for the lien declared in favor of Appeal from Circuit Court, Malheur Coun- the son or that she is thus bound to him for ty; Dalton Biggs, Judge. any debt whatever. She is apparently satis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied January 18, 1921. The common-law rules governing the admissibility of confessions are still in force in Oregon, so that a confession is inadmissible where obtained by temporal inducement, by threats, fear, promises, or hope of favor held out to the party in respect to his escape from the charge against him by a person in authority. 5. Criminal law 1158(4)—Determination as to competency of confession not disturbed unless clearly erroneous. fied with the decree, not having appealed | 4. Criminal law 520(1), 522(1)—Confession therefrom, while the son is seeking to in- Inadmissible where obtained by inducement of crease his lien upon the land, and not only person in authority. so, but also to give it priority over the judgment against her. A modification of the decree complying with his contention would tend to reduce the fund applicable to the payment of her debt. If satisfaction of his lien, increased as he would have it, should result in the exhaustion of the fund or even in the depreciation of it so that the remainder would not fully satisfy the judgment, she would still remain liable personally for the unpaid balance, and her other property, if she has any, might be subjected to its payment. The conclusion is that there is a possibility that her interest will be affected by a modification of the decree according to the contention of the appealing son. She is therefore an adverse party within the meaning of the precedents cited, and the notice of appeal should have been served upon her as such. For want of this, we have no jurisdiction over the case, and the appeal must be dismissed. (98 Or. 285) STATE v. STEVENSON. (Supreme Court of Oregon. Dec. 14, 1920.) 1. Criminal law 539 (2) - Compliance with statute must be shown before preliminary statement to committing magistrate may be admitted. Before the statutory statement made by a defendant at his preliminary examination before a committing magistrate can be admitted in evidence against him at his trial on a criminal prosecution, it must affirmatively appear that notice of right to waive statement required by Or. L. § 1781, was given. 2. Criminal law 517(6)-Confession made to district attorney admissible as extrajudi cial confession and not under statute. Where defendant's alleged confession offered and received in evidence was made to the district attorney at his office in presence of the sheriff and deputy, and was no part of defendant's preliminary examination, it is admissible, if at all, as an extrajudicial confession, and not under Or. L. § 1781. 3. Criminal law 516-"Confession" defined; "judicial confession"; "extrajudicial confes sion." A "confession" is the voluntary admission or declaration made by a person who has committed a crime or misdemeanor to another of the agency or participation which he had in it; "judicial confessions" being those made before a magistrate or court in due course of legal proceedings, and “extrajudicial confessions" being those made elsewhere. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Confession; First Series, Extrajudicial Confession; First and Second Series, Judicial Confession.] The competency of a confession as evidence is in the first instance addressed to the court, and its determination will not be disturbed on appeal, unless the record discloses clear and manifest error. 6. Criminal law 519(3)-Confession while in custody not inadmissible. The fact that defendant's confession was made when he was in the custody of officers does not render the confession any the less admissible, it not having been induced by such custody. 7. Criminal law 530-Extrajudicial confession of defendant written out by district attorney and signed admissible. Confession of defendant charged with adultery, written out by the district attorney and given to defendant to read, he signing it in the presence of two witnesses, held admissible as an extrajudicial confession, fully meeting the requirements as to competency. 8. Statutes 181(1)—Legislative intent controls construction. The legislative intent always controls construction. 9. Courts 89-Constructions of statute by circuit courts do not bind Supreme Court. The constructions placed on the adultery bind the Supreme Court, but the rulings are statute by the circuit courts of the state do not persuasive, and, where the construction has been almost uniform for more than 50 years, it should not be set aside without grave rea sons. 10. Adultery 4-Offended wife or husband has exclusive privilege to institute prosecution. Under Or. L. § 2072, when the crime of adultery has been committed between a married man and a married woman, the right to complain and institute prosecution on a charge of adultery against either of the guilty parties is the exclusive privilege of the unoffending wife or husband of the defendant proceeded against. In Banc. Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge. William Stevenson was convicted of adultery, and he appeals. Reversed, and cause remanded, with direction that defendant be discharged. |