153 Wis. 319 | Wis. | 1913
Plaintiff, an Ohio corporation licensed to do business in Wisconsin, brings this action to set aside a transfer of a farm by the defendants Isaiah Booher and his wife, Mary, to their sons Clarence and Scott Booher, and to subject the real estate to the lien of certain judgments plaint iff has secured against the defendant Isaiah Booher.
The facts as found by the court are practically undisputed and are in substance these: The defendant Isaiah Booher and his wife, Mary, were for many years before the commencement of this action residents of Richland county. They, with their sons Clarence and Scott, occupied and cultivated a farm of 600 acres situated in this county. Up to January 6, 1906, the farm was owned by Isaiah Booher.
On November 7, 1905, Isaiah Booher purchased from the plaintiff a threshing outfit costing $1,790.15, for which he gave his six notes to the plaintiff, maturing in one, two, three, four, five, and six years from date, with interest. In March,
On January 6, 1906, Isaiah Booher and his wife by warranty deed conveyed the 600-acre farm and the personal property situated thereon to their son Glarence, reserving timber and mineral rights. In consideration of such transfer the son Glarence agreed to convey an undivided half interest in all the real and personal property embraced in the transfer to his brother, Scott, when he attained the age of twenty-one years, and the sons were to care for, provide, and maintain Isaiah Booher and his wife, Mary, pursuant to the terms stipulated in the deed during the rest of their natural lives; and no other consideration was paid for such property.
On June 14, 1909, the son Glarence conveyed to his brother, Scott, who was then of age, an undivided half interest in the property, and the mother, Mary Booher, on the same day conveyed to Glarence all her right, title, and interest therein which she had acquired under a decree of divorce rendered September 14, 1906, awarding her a divorce from her husband, Isaiah, and transferring to her, as a final division of his property, all the right, title, and interest Isaiah Booher had in and to the property conveyed to the sons. The court found that this divorce action was brought and prosecuted in good faith by Marry Booher and that the decree therein was awarded upon good and lawful grounds and was not tainted by any fraud of the parties. From the time of the
At tbe time Isaiah Booher purchased tbe threshing-machine outfit from tbe plaintiff, bis wife and sons knew that be bad obtained it on credit and owed plaintiff tbe whole purchase price; that be bad given plaintiff notes to evidence tbe debt, and to secure payment thereof bad executed a chattel mortgage on this property so purchased.
On August 7, 1906, tbe plaintiff seized all of tbe machinery under tbe chattel mortgage and bought it at a sale under tbe chattel mortgage for $800. This foreclosure and purchase was prior to tbe time tbe first note was due and before judgment was obtained against Isaiah Booher.
It appears that Isaiah Booher retained title to twenty acres of land situated about three quarters of a mile from tbe home farm, which be subsequently sold for $500. He also owned 180 acres of land in Vernon county, which be subsequently sold, receiving as consideration other lands and some cash. He also bad a stock of goods with an indebtedness thereon of $1,900. Tbe estimated value of tbe goods by tbe defendant was about double tbe amount of tbe indebtedness thereon. One of plaintiff’s witnesses testifies that it was worth about $200. At tbe trial it appeared that tbe personal property and Booher’s interests in real estate held in bis own name, after transferring tbe home farm to bis sons, was either seized in legal proceeding or by him applied to pay debts in tbe summer and autumn of 1906. Tbe plaintiff recovered a judgment on tbe first note after its maturity in November, 1907, and on other notes in January, 1909; on which judgments there remained unpaid tbe sum of $1,238.75 when this action was commenced.
The trial court found that tbe transfer of the farm in Jan-
The wife’s dower interest in the farm would in no way be affected if it were established that the conveyance of. Isaiah' Booher to his sons was in fraud of his creditors. The contention that her participation in her husband’s conveyance to the sons, in fraud of his creditors, deprived her of all her marital rights and claims to this property has no foundation. Munger v. Perkins, 62 Wis. 499, 22 N. W. 511; Huntzicker v. Crocker, 135 Wis. 38, 115 N. W. 340. If it be assumed, as contended, that the deed from Isaiah Booher to his sons is void as to creditors, this in no way affected the wife’s rights to a final division and distribution of the husband’s estate in the divorce action.' As above stated, the divorce action was based on good and lawful grounds and the parties thereto were not guilty of any collusion or fraud in prosecuting the same to final judgment.
The evidence in the case fails to show that Isaiah Booher did not retain sufficient property in his own name at the time he conveyed the farm to his sons in January, 1906, to cover
By the Court. — The judgment appealed from is affirmed.