Modified March 27, 1917.
On Petition for Rehearing.
(163 Pac. 987.)
Decree modified on rehearing.
Mr. Charles A. Johns and Mr. Claude M. Johns, for the petition.
Messrs. Clarke, Skulason & Clark, contra.
Department 2. Opinion by
Mr. Chief Justice McBride.2. In a petition for rehearing it is urged that the $10,000 advanced by the defendants for the purpose of *498assisting the Multnomah State Bank of Lents to carry on business was in itself a sufficient consideration to uphold these conveyances. To this it may be answered that, while it may have been consideration so far as Hacon Rostad was concerned, the evidence fails to show that it was any consideration for the execution of the conveyances by Mrs. Rostad, the plaintiff, that she had any clear understanding or knowledge that the $10,000 was to be advanced, or that she received, or was to receive, any benefit from the advancement of this sum. The sole consideration so far as she was concerned was the promise that her husband should not be prosecuted by the officers of the bank, and in making this agreement they “kept the word of promise to the ear, but broke it to the hope,” because they well knew that they would be incapable of preventing the prosecution if the matter were reported to the district attorney, as the evidence shows they knew it would be. Besides this the transactions being illegal for the reasons •shown in the principal opinion cannot be relieved of their taint of illegality by showing that a portion of the consideration was valuable and in itself legal. Upon this proposition we adhere to our former decision.
3. But there is another matter which escaped our attention while preparing the original opinion, but which upon a reconsideration of the evidence has some bearing, we think, upon the defendants ’ equities in this case. It is shown that the purchase of lot 6, in block 9, in South Sunnyside Addition to the City , of Portland, and in Sycamore Acres, in Multnomah County, was made by Hacon Rostad while the forgeries and peculations by him were being carried on, and that the property was taken and always held in his own name until *499lot 6 was conveyed to Henry Harkson; that Henry Harkson was the owner of the legal title to lot 6 at the time the conveyance was . made to the Oregon Securities Company. It is further shown that the 29-acre tract situated in Multnomah County, and known as Sycamore Acres, was also purchased by him and taken in his own name and so held until the conveyance to the Oregon Securities Company. "While he says they were' purchased with his own money, it is evident they were purchased at the expense of the bank of which he was cashier, and really with money which was practically stolen from them. Under the circumstances we think the plaintiff at the time of the conveyances to the Oregon Securities Company had no equities in this property, and has none now. The proceeds in justice ought to go toward reimbursing the bank, which in the final analysis paid for the property so far as anybody ever paid for it; and as to these properties the plaintiff has shown no such equities as entitle her to a cancellation of the conveyances and other muniments of title to these tracts made by her in December, 1914. As to the 160-acre tract of land situated in Klickitat County, Washington, the evidence shows that it was purchased by Hacon Eostad before the bank at Lents was organized, and as to that tract Mrs. Eostad has whatever interest to which she is entitled under the laws of Washington.
The decree will, therefore, be modified so as to direct the delivery to her of the notes recited in the principal' opinion and declaring her conveyances of the tract in the State of Washington and the power of attorney as to the last-named tract of no effect so far as it relates to her'interest in that tract, but allowing the conveyances to stand as to the two parcels of property first *500mentioned. The plaintiff will recover her costs in the court below, and neither party will recover costs here.
Modified on Rehearing.
Me. Justice Moore, Me. Justice Bean and Mb. Justice McCamant concur.