it is certainly clear that the plaintiffs understood what they were doing, and that the privilege granted was not a mere license, as alleged.

As to the correctness of the principle so ably maintained by the counsel for the defendants in respect to the duties and obligations of attorneys to their clients, the measure of faith and diligence required of them, and the great jealousy with which the courts watch all transactions between them, and the affirmative duty of the attorney to show that the transaction was fair and honest and above all suspicion,-in a word, that the confidence reposed has not been betrayed,-we heartily approve and indorse. The principle of a public policy, which affects with a presumption all transactions between persons standing towards each other in a confidential relation, that an undue influence has been exercised, and which devolves upon him who occupies the post of active confidence to show that presumption adequately rebutted is founded in the soundest judicial wisdom. But the fact is, so far as relates to this case, it has been previously agreed, when no such relationship existed, that the grant of this privilege should be made. It is true, it had not been put into any obligatory form, and yet the evidence indicates that when done, it was done in the pursuance of that agreement, and as necessary to be done before the title was transferred through a third party from the husband to the wife for the purposes already stated. Besides, we think that the transaction was fair and honest, and that the consideration given was the equivalent of the value of the privilege when granted, and that the plaintiffs were not guilty of any violation of the trust or confidence reposed in them. For these reasons, we do not think that the defense which seeks to set aside and declare invalid the grant is made out.

We now come to the grounds of the complaint, and the issue joined upon it, in connection with the evidence elicited, for the purpose of ascertaining whether the plaintiffs, in view of all the facts, have made such a case as will authorize the injunction prayed for. The facts alleged, and their denial, have already been stated. Without detail, it is sufficient to say there is evidence tending to prove the grievances complained of; and if there was not also evidence tending to show that the plaintiffs, in the same connection, have not been free from fault, we should be disposed to grant the relief prayed for, notwithstanding our doubts that the remedy is at law, and not in equity. It was said in Weiss v. Jackson Co., 9 Or. 471, that the granting of an injunction is an equitable proceeding,

and that the party seeking this peculiar equitable relief should show that he has a right, under all the circumstances, to this extraordinary writ. It is admitted that the plaintiffs have issued permits to very many persons to use and enjoy the solo and exclusive privilege granted to them, their heirs and assigns. In this they transcended their rights under the terms of the grant. They claimed the right, also, to use the privilege to kill and take wild fowl at places not authorized by the grant. Some of the persons to whom the plaintiffs gave these permits not only claimed the right to hunt and shoot and roam where they pleased on the lands of the defendants, but in some instances behaved in a most impudent and insolent manner to those old people, upon whose land they had no right to be without their permission for any purpose whatever. In substance, the evidence is that they left the gates open, shot their guns off in the vicinity of the house and barn, sometimes hitting the cattle and frightening the stock; twice hitting and wounding a valuable shepherd dog, which finally had to be killed in consequence of the wounds thereof; roam ing over the lands at their will; and in one instance, when ordered to leave the place, one of these persons threatening to have one of the defendants arrested; another telling her: "You have nothing to say about this place; it is none of your business; I got a permit in my pocket"; and much more of like character. Under this state of facts, is it surprising that the defendants were exasperated, and resisted? and may we not suppose that if the privilege granted had been used in conformity with its terms, the present misunderstanding might have been avoided? It may be admitted that the defendants have not been without fault; but have the plaintiffs been free from blame? We do not care to pursue the subject further.

Our opinion is, a case has not been made which would authorize the issuance of this extraordinary writ as prayed for, and that the decree must be reversed, and the bill dismissed; each party paying their own costs and disbursements.

PROFIT A PRENDRE AND EASEMENT, difference between: Tinicum Fishing Co. v. Carter, 100 Am. Dec. 597, and note. That grant of right to take fish is a profit a prendre, and not an easement, see same case and note; also Cobb v. Davenport, 97 Id. 718, note 722.

AS BETWEEN ATTORNEY AND CLIENT, the former must show the transac tion to be fair and equitable: Kisling v. Shaw, 91 Am. Dec. 644, note 652. MISTAKE OF GRANTOR AS TO LEGAL EFFECT OF WORDS used in a deed, if they were such as he intended to use, will not afford him relief: Burt v. Wilson, 87 Am. Dec. 142; Ruffner v. McConnel, 63 Id. 362, note 365.

AM. ST. REP., VOL. III.-11

WEBER V. ROTHCHILD.

[15 OREGON, 385.]

FRAUDULENT CONVEYANCE AS AGAINST WIFE. Where grantor conveys property of great value for a meager consideration, under an agreement that a reconveyance will be made within a certain time for the same consideration, the deed and agreement create a secret trust in favor of the grantor, and are fraudulent and void as against his wife in her suit for divorce and alimony, when the grantee had notice at the time the deed was made of the facts constituting the ground for divorce. He cannot claim to be a bona fide purchaser for value.

WHERE DEED IS ATTACKED FOR FRAUD, the grantee, in order to prove himself a bona fide purchaser, must show that he paid a valuable consideration; that at the time of payment he had no notice of an outstanding equity, or of the fraudulent intent of the grantor, and that he acted in good faith. The same elements which were necessary to constitute a good plea in bar to such cases under the former equity practice are necessary to make a good answer under the Oregon code.

WHEN DEED IS ATTACKED FOR FRAUD, and the grantee pleads that he is a bona fide purchaser for value, such plea is an affirmative defense, casting the burden of proof on him, and the plaintiff need only show the fraudulent intent and purpose of the grantor.

WHEN FACT IS PECULIARLY WIthin Knowledge of PARTY, he must produce the necessary evidence to prove it.

WHERE TWO WRITINGS RELATE TO THE SAME SUBJECT-MATTER, bear even date, are between the same parties, and executed at the same time, they must be taken together and held to constitute but one entire transaction, in the absence of evidence to the contrary.

Emmons and Emmons, and Joseph Simon, for the appellants. H. T. Bingham and Cornelius Taylor, for the respondent.

By Court, STRAHAN, J. The objects of this suit were: 1. To obtain a dissolution of the marriage existing between plaintiff and the defendant Emil Weber, the care and custody of the children born of said marriage, alimony, and one third of the real property of the defendant Weber; and 2. To set aside. and annul, as fraudulent, a certain deed made by the defendant Emil Weber to the appellant Rothchild, of certain property in Multnomah County. The deed included the house and lot in the city of Portland, where Weber and his wife had resided for a number of years, the furniture therein, and a piece of farm land in Multnomah County. The plaintiff obtained a decree in the court below in accordance with the prayer of her complaint, and for five thousand dollars alimony, and the conveyance to Rothchild was set aside as fraudulent. From so much of the decree as annuls this deed Rothchild has ap pealed to this court, and the only questions presented here

for our consideration are those between the plaintiff and Rothchild.

After the evidence had all been taken in the court below, and before final decree, the court allowed the complaint to be amended so as to conform the pleading to the facts proved. This amended pleading does not affirmatively appear from the record to have been served on Rothchild, nor was it necessary, nor did he file an answer to the same. The new matter inserted in the amended pleading related entirely to the causes of divorce relied upon by the plaintiff, and did not affect the transaction between the defendants as to the property. In addition to this, Rothchild appeared and filed exceptions to the referee's report, and so far as appears his answer to the first amended complaint must have been treated as an answer to the second amended complaint, and it has been so treated in this court. It has not been suggested that there is anything in the plaintiff's second amended complaint that is not as fully met by this appellant's answer to the first amended complaint as he desired to meet it, and we cannot see that any injury will result to any party by so treating it. In addition to this, no objection appears to have been made in any form in the court below to the state of the pleadings, but it is made here for the first time. We will, therefore, for the purposes of this case, treat the answer of Rothchild as an answer to the plaintiff's second amended complaint.

The complaint alleges, substantially, that on the third day of November, 1886, the defendant Weber left his place of abode in Portland, Oregon, and absconded and secreted himself at Denver, Colorado, for the purpose of avoiding the service of a summons in this cause; that he then had in money about ten thousand dollars, which he withdrew from Ladd and Tilton's bank in the city of Portland, and that just prior to his departure from this state he fraudulently assigned and transferred the real and personal property in controversy to the defendant Rothchild, for the purpose of hindering and delaying the plaintiff in the prosecution of her suit for divorce against Weber, and defeating any decree that might be made therein; that the consideration was inadequate, and that said Rothchild did not purchase said property in good faith, but accepted the conveyance thereof with an agreement that he would reconvey the same to Weber, or such person as he should designate, when thereto requested, and that said Rothchild holds the same in trust for Weber.

The separate answer of the appellant denies the fraud charged, and then alleges that on or about the third day of November, 1886, he purchased the property in controversy in good faith from the defendant Weber, for and in consideration of the full sum of two thousand five hundred dollars, paid to said defendant Weber by this defendant. The answer then alleges that the only agreement which the defendant Rothchild made with Weber respecting said property was in writing, a copy of which is then set forth in the answer in hæc verba. This agreement bears even date with the deed, and in effect binds Rothchild in the penal sum of ten thousand dollars, to be void if he shall perform the conditions specified in said writing on his part to be performed. This agreement recites a money consideration of two thousand five hundred dollars, and it is then further stated in said writing, in substance, that a material part of the consideration for said conveyance "is the agreement on my part to resell and reconvey all of said real property, and every portion thereof, to said Emil Weber, upon the payment to me by him of the full sum of three thousand dollars, in gold coin of the United States, at any time within the period of one year from the date of this instrument, and to execute a good and sufficient deed of conveyance for all of the said real property conveying the same title and interest therein which I have received from said Emil Weber, upon such payment by him of said sum of three thousand dollars within said year; and whereas, I hereby agree to and with the said Emil Weber to execute said deed of conveyance, and reconvey all of said real property to him, upon the foregoing consideration." Said agreement further obligated said Rothchild to execute a deed of conveyance, upon the payment of three thousand dollars within one year, conveying the title of all of said real property, free from all encumbrances placed thereon, or suffered to be placed thereon, by myself, or any grantees or assignees, to said Weber.

We do not care to recapitulate the facts touching the rela-. tions between Weber and his wife for some time prior to the second day of November, 1886, as they are disclosed by this record. It suffices to say that they furnished ample causes for a divorce in favor of the plaintiff, and that these facts appeared to have come to the knowledge of the plaintiff not long prior to that time, and the defendant Weber also became aware about that time that his wife had acquired a knowledge of the facts upon which this suit is founded. The facts and circum