Maidment v. Russell , 159 Or. 653 ( 1938 )

Petition for rehearing denied September 20, 1938 ON PETITION FOR REHEARING (82 P.2d 692) A petition for rehearing, filed by the appellant, calls our attention to two particulars in which our opinion is not in harmony with the record. The opinion states that the land conveyed by Ed Russell to his mother, Kate Russell, on September 9, 1930, consisted of approximately 4,000 acres. The petition says that the description in the deed covers approximately 5,300 acres. The deed does not state the number of acres and the description includes several lots, the dimensions of which are not given. Without these lots there are something less than 5,100 acres, according to our computation.

We had assumed that the land conveyed by this deed was the same land which Mrs. Russell conveyed to her son on July 21, 1922, that is to say, the Underwood and Greenfield ranches comprising something in excess of 4,000 acres. It appears, however, that Ed Russell owned other lands which he also conveyed to his mother by the deed of September 9, 1930, but this cannot affect the result. The evidence is, that the Underwood and Greenfield tracts were worth $6 an acre in 1930. If we assume that the additional acreage deeded to Mrs. Russell by her son was of the same value, then the entire tract, even if we should accept the assertion in the petition that it contained 5,300 acres, was worth only $31,800, whereas, Ed Russell was indebted to his mother in the sum of $45,852, a sum in excess of the combined value of the real and personal property which he transferred to her, to say nothing of the $14,000 of his indebtedness which she paid.

The petition further avers that we were in error in assuming that the partnership between the defendants had its beginning in 1922, instead of 1919. We have again read the testimony on that point and agree that the record supports this criticism. This date, however, is not of great importance. The pivotal question in the case relates to the genuineness of the promissory note for $51,652, which Ed Russell gave to his mother on July 21, 1922, as representing the purchase price of lands which she deeded to him and of a half interest in her livestock and other personal property. The partnership relation is a circumstance which has a bearing on that question, but its significance is very little affected, whether it began in 1919 or 1922.

Apart from these two matters, the petition is merely a reiteration of arguments and contentions heretofore pressed upon us by the appellants and to which we gave careful consideration before rendering our decision. We deem further discussion unnecessary. We have examined the record again and are satisfied of the correctness of the decision.

The petition for rehearing will therefore be denied.

ROSSMAN and RAND, JJ., did not participate.