DRAKE v. SWORTS et al. 1. Under Code, § 146, which provides that an attachment plaintiff must give an undertaking with sureties that he will pay all costs adjudged to defendant and damages sustained by reason of the attachment if the same be wrongful, the sureties on an undertaking are liable not only for expenses incurred by defendant on account of the attachment, but also for all costs and disbursements adjudged to him in the action. 2. Though the complaint in an action on an attachment bond, providing for the payment of all damages sustained by the attachment if the same be wrongful and without suflicient cause, did not allege that the attachment was wrongful or without sufficient cause, the defect, if any, in such pleading, was cured by answering over. 3. The fact that defendant in attachment executed and delivered to the sheriff holding the attached property a redelivery bond, conditioned upon the return of the property or its value in case plaintiff obtained judgment, as provided by Code, § 154, does not operate as a discharge of the attachment or a waiver of the right of action on the undertaking therefor. 4. In an action against a surety on an attachment bond providing for the payment of all costs adjudged to defendant in attachment if the same be wrongful, evidence is inadmissible to show that certain items of costs and disbursements in the judgment were erroneously included therein. by the transaction, and they have a right have the relief prayed for. The decrec, to have it set aside, and to have an account therefore, must be affirmed, and the bill disfor the profits realized. But these conclu- missed. sions are only applicable to a suit brought by the creditors to set aside a contract, and compel the defendants to account for any profits derived from it, and that such profits, if there be any, be ratably distributed among the creditors of the company. Plaintiff's have brought no such suit, nor do they seek to accomplish such object by the one which they have brought. The object of their suit is to have the action at law to recover the value of the flour which was levied upon and sold perpetually enjoined, and the proeeeds derived from its sale applied in payment of their judgment, and then, whatever surplus shall remain, or other profits there may be from the defendants operating the mill under the lease, that the plaintiffs have a decree applying a pro rata thereof on their demand of $8,000, and for this purpose that the defendants be declared trustees for the benefit of creditors. Unless, therefore, the flour which was attached and sold was the flour of the company, plaintiff's must fail in this suit, as they do not seek by it to have an accounting of the alleged llegal transaction for the purpose of ratably distributing its fruits or profits among Its creditors. When profits are made by a violation of duty, the law will not permit the agent, for obvious reasons, to reap the fruit of his misconduct, but holds him as a trustee of such profits for the benefit of creditors. It is the fruit of the illegal transaction, the profits arising from it, or an advantage gained by it, which the suit must be brought to secure for a pro rata distribution among creditors, and to which the agent is bound to respond as trustee. The profits of the transaction, whether legal or illegal, are the gain or advantage realized after deducting the losses and expenses. Money advanced in buying wheat and manufacturing it into flour is an expense which must be deducted before the profits of the transaction can be ascertained for which the defendants are liable to account as trustees for the benefit of creditors; hence the wheat which the defendants purchased, or the flour into which it was manufactured by them, cannot be regarded as profits, or constitute the advantage derived from operating the mill under the lease, but either one or the other is to be considered as an expense, and taken into account in ascertaining the profits. This being so, the expense of producing the flour stands to the credit of the defendants, as they are entitled to have it deducted in determining the profits derived from operating the trust property. It must therefore be the defendants' property, and not the property of the company, and, consequently, not liable for attachment for its debts. In view of these considerations, it follows that the plaintiffs are not entitled to have the action at law enjoined, nor to Appeal from circuit court, Harney county; Morton D. Clifford, Judge. Action by M. H. Drake against Sworts & Miller, one Wooley, and others, on an undertaking in attachment. From a judgment for plaintiff, defendant Wooley appeals. Affirmed. T. C. Hyde, for appellant. C. W. Parrish, for respondent. BEAN, J. This action is brought upon an undertaking for an attachment given in an action at law brought by Sworts & Miller against the plaintiff herein. The complaint, in substance, alleges that in pursuance of said undertaking and the affidavit of Sworts & Miller a writ of attachment was issued in said action upon which 31 head of horses, the property of plaintiff, were attached and detained by the sheriff for 47 days, and until the plaintiff gave a redelivery bond, as provided by law; that on a trial of said action before the court and jury the defendant (plaintiff herein) obtained a judgment for the sum of $419.10 as costs and disbursements, which remains unpaid, and for which he demands judgment in this action upon the undertaking. A demurrer to the complaint was overruled, and judgment for want of an answer was rendered against all of the defendants except the defendant Wooley, who answered, admitting all the allegations of the complaint except as to the amount of the judgment for costs, and as to that it is denied to be for more than $110. A trial before the court without the intervention of a jury resulted in a judgment in favor of the plaintiff for the amount claimed, from which the defendant Wooley appeals. The defendant contends that the obligors in an undertaking for an attachment, under our statute, are not liable for all costs that may be adjudged to the defendant in the action, but only for such expenses as may have been incurred on account of the attachment. On the other hand, the contention for plaintiff is that he is entitled to recover in an action on the undertaking all costs and disbursements adjudged to him in the original action, whether on account of the action itself or the attachment therein. The liabil ity of the obligors is measured by the conditions of the undertaking, and, as the undertaking in this case by its terms complies with the provisions of section 146 of the Code, the decision of the controversy depends upon the construction of that section, which provides that the plaintiff in an action, before procuring an attachment to issue, shall give an undertaking, with one or more sureties, "to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the attachment if the same be wrongful and without sufficient cause, not exceeding the sum specified in the undertaking." Under this statute there are plainly two obligations assumed by the parties to an undertaking for attachment: (1) That the plaintiff will pay all costs, which, of course, includes disbursements, that may, by the court in which the action is tried, be adjudged to the defendant; and (2) if the attachment is wrongful, and without sufficient cause, to pay such damage as the defendant may sustain by reason of the attachment. These are separate and distinct obligations, independent of each other, the latter of which may happen without the former, and even if the plaintiff should prevail in the action. This, it seems to us, is the plain and obvious meaning of the statute, and so clearly expressed that it cannot be construed so as to limit the obligation to the costs incurred in the attachment. We are aware, of course, that this construction makes the undertaking for an attachment a security for costs in case the defendant prevails in the action, but it was wholly within the power of the legislature to impose such conditions if the plaintiff is to seize the defendant's property upon an attachment, even before a cause of action has been established; and the court is bound to give the statute effect according to its lan guage and evident intent. This is the construction placed upon the statute by Mr. Justice Deady in Ging Gee v. Ah Jim, 7 Fed. Rep. 811, in an able and well-considered opinion, and is the construction given to similar statutes in other states. Greaves v. Newport, 41 Minn. 240, 42 N. W. Rep. 1059;. Lee v. Homer, 37 Hun, 634, affirmed, 109 N. Y. 630, 15 N. E. Rep. 896. 2. It was claimed by the defendant that the complaint in this case is defective because it does not allege that the attachment was wrongful, or without sufficient cause. But this defect, if any, was cured by answering over. Olds v. Cary, 13 Or. 362, 10 Pac. Rep. 786. 3. It is also contended that the execution and delivery by plaintiff of the redelivery bond, as provided in section 154, operated as a discharge of the attachment, and a waiver of the right of action on the undertaking therefor. A distinction is to be observed between the effect of a bail bond, as provided for in sections 159 and 160, and the redeliv ery bond given in this case. The former. being given as security for the payment of such judgment as may be recovered in the action, operates to discharge the attachment, (Duncan v. Thomas, 1 Or. 314,) and is probably a waiver of the right of action on the undertaking, (Rachelman v. Skinner, 46 Minn. 196, 48 N. W. Rep. 776.) But the undertaking provided for by section 154 of the Code is not for the payment of the judgment recovered in the action, but is an engage ment to redeliver the attached property, or pay the value thereof to the sheriff to whom execution upon a judgment obtained by the plaintiff in the action may be issued, and authorizes the sheriff to yield the actual possession of the attached property to the defendant or other person claiming it, but does not dissolve the attachment, nor withdraw the property from the operation of the lien thereon. Kohn v. Hinshaw, 17 Or. 308, 20 Pac. Rep. 629. "It differs from a bail bond," says Mr. Drake, "in that it does not dis harge the lien of the attachment, since the very object of the bond is to insure the safe-keeping and faithful return of the property to the officer, if its return should be required." Drake, Attachm. § 331, and authorities cited. And this is the rule though the bond be conditioned in the alternative for the delivery of the property or for the payment of its value. Wade, Attachm. § 193; Gass v. Williams, 46 Ind. 253; Gray v. Perkins, 12 Smedes & M. 622. Such being the effect of the redelivery bond, it did not operate as a waiver of the right of action on the undertaking for the attachment. 4. On the trial the defendant sought to show that certain items going to make up the amount of the judgment for costs and disbursements in the action were erroneously included therein, and the rejection of this evidence is assigned as error. It is ar gued that such evidence was admissible in behalf of the defendant Wooley, who was not a party to the action, and hence, it is claimed, not bound by the judgment. The vice in this argument lies in the fact that his contract binds him to abide the result of that action without being a party to it. His obligation is that "the plaintiff will pay all | costs that may be adjudged to the defendant." The action was to be litigated by the plaintiffs, and Wooley undertook that he would abide the judgment of the court so far as costs and disbursements are concerned. It was so litigated, and a judgment rendered in favor of the defendant (plaintiff herein) for $419.10 as costs and disbursements. From this judgment no appeal has been taken. It stands in full force and effect, and the amount thereof is binding upon the plaintiff's in the action, and is conclusive upon the appellant herein. This judgment not having been paid, the obligation of the defendant was broken, and he is liable on his undertaking for the amount thereof. Lothrop v. Southworth, 5 Mich. 448; Weaver v. Poyer, 73 Ill. 489; McAllister v. Clark, 86 III. 236. It follows that the judgment of the court below must be affirmed. THOMAS v. THOMAS et al. (Supreme Court of Oregon. June 28, 1893.) EQUITY-RESCINDING CONVEYANCES — FATHER TO SON-CONDITION OF DEED-FORFEITURE EviDENCE-VENDOR'S LIEN-TAXATION Of Costs. 1. Where, after a father has conveyed his farm to a son in consideration of an agreement for support thereon during life, and the payment of certain advances to other children, the son conveys the same to another, who agrees to perform the agreement on the part of the son. the conveyance to the son is forfeited, and the father is entitled to recover the farm, as the obligation of the son is personal, and cannot be performed by another. 2. On the question whether plaintiff cousented to a conveyance sought to be set aside, plaintiff testified that he had no knowledge thereof until after it was made. Two defendants testified that the contemplated sale of the property was talked over in plaintiff's presence, and he made no objection thereto, but there was no evidence that he was consulted in the matter, or agreed thereto. Held, that the evidence would not justify a finding that the conveyance was made with plaintiff's consent. 3. A vendor's lien does not exist for the unpaid purchase price of land, where a part of the notes given therefor are not due, and those due have been paid, or their payment tendered. 4. Where the record on appeal from a retaxation of costs does not contain findings by the trial court, the objections raised cannot be reviewed. S. K. Thomas to his codefendant, Delaney; second, for a decree making the deferred payments upon certain other lands sold by the plaintiff to the defendants a lien upon the lands. From the pleadings and the evidence upon the first cause of suit it appears that on January 5, 1889, the plaintiff, who was then about 75 years old, and without any one to care or provide for him in his old age, being desirous of distributing his property among his children, and providing for his own support and maintenance during his life, conveyed the property in controversy, upon which he then resided, to his son Squire, one of the defendants. The consideration, as stated in the deed, was $2,000; but the real consideration was an agreement on the part of Squire to pay four of plaintiff's other children the sum of $200 each, in accordance with the terms of his promissory notes therefor, executed and delivered to plaintiff, and an agreement in writing, executed contemporaneously with the deed, and forming a part of the same transaction, by the terms of which Squire covenanted and agreed with plaintiff to furnish him a home and support on the land so conveyed, so long as he might live, and to pay him the sum of $200 as an annuity during his life. The several sums evidenced by the promissory notes drawn in favor of plaintiff's children were intended by him, at the time of the conveyance, as gifts or advancements to his children; but none of the notes have ever been delivered to the persons for whom intended, although the defendant paid to the payee of one of them the sum of $140, obtained the note from plaintiff, and canceled and destroyed the same. The remainder of the notes were brought into court by the plaintiff for the purpose of being surrendered up and canceled. From the time of the execution of the deed and agreement up to December 30, 1890, plaintiff and his son continued to reside together on the farm, and the latter substantially fulfilled the agreement on his part, except that he paid only the sum of $35 on the annuity. On that date he sold and conveyed the farm to defendant Delaney for the sum of $400 in money, and an oral agreement on the part of Delaney to pay the notes in favor of plaintiff's children when the same should become due, and to support and maintain plaintiff on the farm during his life. On Appeal from circuit court, Union county; January 21, 1891, plaintiff learned for the Morton D. Clifford, Judge. Action by Israel Thomas against S. K. Thomas and J. H. Delaney to rescind conveyances of land, and for other relief. Plaintiff had decree, and defendants appeal. Modified. C. H. Finn, for appellants. R. Eakin, for respondent. BEAN, J. The object of this suit is twofold: First, to cancel and set aside a conveyance of certain lands by the plaintiff to his son S. K. Thomas, and the deed from first time, as he claims, of the conveyance to Delaney, and brought this suit to set aside and cancel the deed to his son, and the deed from his son to Delaney, alleging, among other things, that his son had failed and neglected to pay either or any of the annual installments, or any part thereof, except the sum of $35, and that the deed to Delaney was made without his knowledge or consent, and for the purpose of cheating and defrauding him out of his home, and offering in the complaint to return the $175 paid on the consideration for the deed. A decree was ren dered in plaintiff's favor in the court below, from which defendants appeal. A careful examination of the question has satisfied us that the decree, so far as the first cause of suit is concerned, should be affirmed. The contract of the defendant S. K. Thomas to give his father a home and support upon the land, as a part of the consideration for the conveyance, was a personal obligation, to be performed by him alone, and could not be assigned, without the consent of the father, so as to substitute some other person in his place. The principal consideration for the deed to the son was the support and maintenance of the plaintiff upon the farm during his old age, by one of his own flesh and blood, and not by a stranger. His object was to have his son reside with and take care of him during the remainder of his life, on the premises conveyed. This was the motive which prompted him to make the conveyance, and the condition upon which it was accepted. The sale of the land by the son puts it out of his power to comply with the condition upon which he was to receive the title, and utterly defeats the object sought by plaintiff in making the conveyance, and therefore works a forfeiture of the estate. Any other rule would destroy the very purpose of the grant, and render the grantor dependent for his support and maintenance upon the pleasure and convenience of successive assignees, whether agreeable to him or not. Nothing can be more effectual, in securing the faithful performance of a contract of this kind, than the right of the parent to revest the entire estate in himself upon a breach by the son, in putting himself in a position where he is unable to comply with his contract. The rule which holds the child to a strict performance of his part of the contract, and gives the parent the right to recall the gift if he fails, is founded upon obvious principles of justice and right, and is the only rule, it seems to us, which will preserve the rights of a parent who enters into a contract of the character now under consideration. The books abound in illustrations of the distressing family discords and law-suits which seem almost invariably to spring from a disregard of the advice of the son of Sirach: "Give not thy son and wife, thy brother and friend, power over thee while thou livest, and give not thy goods to another, lest it repent thee, and thou entreat for the same again. As long as thou livest, and hast breath in thee, give not thyself over to any. For better it is that thy children should seek to thee, than that thou shouldst stand to their courtesy. In all thy works, keep to thyself the pre-eminence. Leave not a stain on thine honor. At the time when thou shalt end thy days, and finish thy life, distribute thine inheritance." Ecclesiasticus, Xxxiii. 19-23. And the courts have always been zealous in demanding and requiring a strict performance by the child, and to that end have held that the duty to support the parent, under a contract of this kind, is a personal one, and cannot be transferred to a third person without the consent of the parent, and an attempt to do so gives the parent the right to revest the entire estate in himself. Thus, in Clinton v. Flye, 10 Me. 292, (which was a writ of entry brought against the defendant as assignee of one Roundy,) a contract had been made by the plaintiff and Roundy by which it was agreed that Roundy should support and maintain his father and mother and an idiotic brother during their natural lives, for which the plaintiff agreed to give him the use and occupancy of a certain farm during the lives of the father and mother, and at their death to give him a deed to the land. It was held that the contract was a personal trust, unassignable, and the plaintiff recovered the land from Roundy's grantee, the court saying: "If the contract is held assignable, they (the persons to be supported) are liable to be transferred, at the convenience and pleasure of successive assignees, whether they possess, or not, the temper and qualities which would enable them satisfactorily to fulfill the trust." So, also, in Flanders v. Lamphear, 9 N. H. 201, the plaintiffs gave a deed to their son, and he gave back a mortgage conditioned for the support of the grantors during their natural lives, and to pay sundry debts of the father. Subsequently, the son conveyed the premises to a third person, and they were again transferred so that Lamphear, the defendant, had them by mesne conveyance from the son. The plaintiffs then brought a writ of entry against Lamphear, and it was decided that it could be maintained unless it could be shown the conveyance of the son was made with the consent of the plaintiffs. In Eastman v. Batchelder, 36 N. H. 141, Batchelder gave a deed of his real estate to Trasker, his son-in-law, upon the condition and consideration that he and his wife should be supported on the premises during their lives by Trasker, the object being to have their daughter and her husband reside with and take care of them in their old age. On a bill in the nature of a suit to redeem, and to be let into possession, brought by the purchaser of Trasker's right at an administrator's sale of his estate, it was held that, although he offered to perform the conditions of the contract, the suit could not be maintained, because the contract for the support of Batchelder was personal to Trasker, and could not be performed by his assignee, and that neither Trasker nor the administrator of his estate could transfer the premises and his responsibilities, nor could his creditors, before his decease, have deprived him of the land, and retained it, against Batchelder. To the same effect are Bryant v. Erskine, 55 Me. 153; Bethlehem v. Annis, 40 N. H. 34; Jones, Mortg. §§ 388, 392; Daniels v. Eisenlord, 10 Mich. 454. It was claimed at the argument that the is included in the cost bill. Objections were sale to Delaney was made with the knowledge and acquiescence of the plaintiff, but in our opinion the evidence fails to sustain the contention. Plaintiff testifies that the first knowledge or information that he had of the sale, or contemplated sale, was from Delaney, after the deed had been made, and but a few days before this suit was commenced. The only evidence to the contrary is the testimony of the two defendants, who are to be benefited by the sale, if sustained; and their evidence is only to the effect that the contemplated sale was talked over by them in the presence of the plaintiff, and he made no objection thereto. But they do not testify that he was ever consulted about the matter, or knew anything about the terms and conditions upon which the sale was to be made, or that he ever agreed or consented that it might be made, and the obligation of his son transferred to Delaney. Upon this evidence the court would not be justified in holding that the transfer was made with his consent. The second cause of suit is to enforce a grantor's lien for the unpaid purchase price of certain land sold and conveyed by plaintiff to the defendants jointly, the consideration for which was evidenced by promissory notes payable to certain of plaintiff's children, but never delivered by him. The first of these notes matured January 1, 1890, and was paid before the commencement of this suit. The second note became due on January 1, 1891; and, while it was not paid at the commencement of this suit, the evidence shows that defendants made every reasonable effort to pay it, by tendering and offering to pay the same to both the plaintiff and the payee named therein. The other notes were not due at the time this suit was commenced, and hence there was no default on the part of the defendants; and as to this cause of suit the complaint must be dismissed, conceding, but without deciding, that the doctrine of a grantor's lien prevails in this state. There is also an appeal from the action of the court below on a motion for the retaxation of costs. After issue joined this cause was referred to a referee for trial, and a stenographer appointed by the court to take the testimony under his direction. The referee charged for 7 days' services in hearing the testimony and arguments of counsel, and 1% days for the examination of the case and the preparation of findings, at $20 per day, making a total of $170, onehalf of which is alleged to have been actually paid by plaintiff, and is included in his cost bill, as filed. The stenographer charged for 6 days' services in taking testimony, at $10 per day, and 15 cents a folio for transcribing 500 folios of testimony, and 10 cents a folio for 2 copies thereof, making a total of $185, of which $84.50 is alleged to have been actually paid by plaintiff, and filed by the defendants to the allowance of sundry items of the cost bill, and particularly to the items for referee's and stenographer's fees. These objections were overruled by the clerk. On a motion to retax the costs the court below allowed for the services of the referee $42.50, being one-half of his compensation, at the rate of $10 per day, and for the stenographer $67.50, being one-half of his fees, as allowed by the court below. It appears from the objections to the cost bill, and affidavits in support thereof, that the objection to the allowance of the items for referee's and stenographer's fees is based upon the fact, as claimed, that the referce was actually engaged only 5% days in the trial of the cause, and had already exacted from defendants, and required them to pay, $65, before he would report their part of the testimony, and that this length of time was made necessary by the fact that the referee permitted and allowed the stenographer to take the testimony on a typewriter, in place of in shorthand, and thus prolonged the hearing, and increased the per diem of both the referee and stenographer largely in excess of what it would otherwise have been, and that the stenographer was only entitled to $90 for taking and extending the testimony, and defendants had already paid him $70, which he demanded before he would allow their testimony to be filed. If these objections are well founded, they certainly should have been sustained. The referee was entitled to his compensation only for the time actually and necessarily spent in the business of the reference, and, having been provided with a stenographer, he could not, by resorting to the device of allowing and permitting the testimony to be taken on a typewriter, so in crease his or the stenographer's per diem beyond what it would have been had the evidence been taken in shorthand. Such a practice finds no sanction or authority in the law, is in open and flagrant violation of the rights of the litigants, and ought to receive the prompt and vigorous disapproval of the court. The legitimate costs and disbursements necessarily attending the trial of a cause of this character are burdensome enough to litigants, without being increased by constructive and unauthorized fees. But since there are no findings of fact, as provided in section 557 of the Code, in the record, we are unable to determine whether the objections are well founded or not. The law makes it the duty of the trial court, on retaxation of costs, to make findings of fact and law upon each item objected to, and give judgment thereon, from which an appeal may be taken. This seems not to have been done in this case, and for this reason the cause must be remanded, with directions to the court below to make such findings, and retax the costs. The decree of the court will therefore be affirmed as |