53 Wis. 380 | Wis. | 1881
Upon the argument in this court, the appellant did not urge the consideration of the first and second causes of demurrer assigned by her, but relied solely on the third and fourth grounds. The third ground of demurrer, that there is a defect of parties defendant because the defendant should not have been made a party, is clearly untenable. The fact that a party is made a defendant against whom no cause of action is stated, is not a ground of demurrer under the provision of the statute which allows a demurrer because of a defect of parties plain tiff or defendant. In order to sustain a demurrer by the defendant for a defect of parties defendant, it must appear that a party who is a necessary party defendant has not been made such. If a party has been made a defendant when no cause of action is stated against him, he must demur for that reason, and not on account of a defect of parties. Willard v. Reas, 26 Wis., 540; Marsh v. Supervisors, 38 Wis., 250; Great Western Compound Co. v. Ætna Ins. Co., 40 Wis., 373; 1 Wait’s Pr., 139, and cases there cited. All the objections made by the appellant as to the sufficiency of the complaint, under his third ground of demurrer, can be raised under his fourth, “ that the complaint does not state facts constituting'a cause of action.” This ground of demurrer is sustained if the complaint does not state facts sufficient to charge the party demurring, although the facts may be sufficient to charge other parties not joining in such demurrer.
The only other question to be considered in this case is, whether the complaint states facts sufficient to constitute a
If it be admitted (a point we do not decide) that the provisions of sections 2989 and 2990, E. S., which prescribe the manner of seizing and selling the interest of a judgment.' debtor in the capital stock of an incorporated company upon, an execution issued upon a judgment against him, authorize the seizure and sale of an interest in such stock when such-stock is subject to the life estate of another, and is in the hands of trustees and held by them for the benefit of the person having the life estate during the continuance thereof, still we are of the opinion that the demurrer is not well taken. The general words of the complaint, alleging a conveyance of the stock by John. Schlitz to his wife, and her-conveyance thereof to her
This court has held that in pleading a contract which is void unless in writing, the party relying upon the validity of the contract need not, in setting it out in his complaint, show that it was in writing; that a general allegation that an agreement was made, setting out its terms, is sufficient, and is good against the demurrer that the complaint does not state a cause of action. Pettit v. Hamlyn, 43 Wis., 314; Whiting v. Gould, supra, 594. So, in the case at bar, the plaintiff relying upon the fact that the judgment debtor has conveyed his interest in the stock so as to divest the judgment debtor of his right to have the same applied to the payment of his judgment unless such conveyance is void for fraud or want of consideration, the general allegation that the same was conveyed and assigned will be presumed to be of such legal transfer or assignment as would divest the judgment debtor of his right except for the fraud ancj want of consideration.
Under the provisions of the statutes of this state it is entirely unnecessary to discuss the question whether, at common law, the shares of capital stock of an incorporated company could be subjected to the payment of a judgment against their owner. Our statutes have expressly provided that such shares may be applied in that way, and may, in cases at least where there is no dispute about the ownership or right to immediate possession, be seized and sold on execution, without any resort to a court of equity for that purpose. See sections 2989 and 2990, E. S. The only doubt about the right to apply the in
The first objection, that the defendant’s estate is a remainder subject to a life estate, would seem to he no objection, either in law or equity, to subjecting it to the payment of his debts. If the estate were real estate, there could be no doubt about the authority to sell such estate upon the execution. The statute (section 2059, R. S.) makes such an estáte in real property “ descendible, devisable and alienable, in the same manner as estates in possession;” and it is a general rule that every estate in lands which is alienable by the party entitled to the estate, is liable to be seized and sold on execution against him. See Herman on Executions, 184; Williams v. Amory, 14 Mass., 20; Penniman v. Hollis, 13 Mass., 429; Ereeman on Executions, § 178; Burton v. Smith, 13 Pet., 464; Watson on Sheriffs, 208; Moore v. Littel, 41 N. Y., 66; Woodgate v. Fleet, 44 N. Y., 1; Sheridan v. House, 4 Keyes, 569; and other cases cited by Ereeman in notes 6, 7,8, to section 178. This court held (Bridge v. Ward, 35 Wis., 687) that when a life estate in real property was devised to a man, after the death of the testator his life estate could be sold on execution, although there was a provision in the will restricting the devisee from selling the same. The restriction in the will was not accompanied by any declaration that an alienation by the devisee should work a forfeiture of his estate. These authorities also hold that it is immaterial that the remainder is an undivided or even an uncertain interest. See cases of Moore v. Littel and Woodgate v. Fleet, supra; Atkins v. Bean, 14 Mass., 404; Puryear v. Edmondson, 4 Heisk., 43.
In a case like the one at bar, where the statjjte has expressly . pointed out a method of seizing and selling the interest of a judgment debtor in the capital stock of a corporation, there would seem to be no very apparent reason why an estate in remainder, as well as a present estate, might not be seized and sold in the manner pointed out by the statute; but it is un
The only question, therefore, for this court to determine is, whether the estate of the defendant in remainder in this stock was so held in trust, at the time this action was commenced, as to come within the exception of the statute. This section was adopted by the legislature of this state from the statutes of New York, in 1860. See chapter 303, Laws of 1860, and 2 B. S. of New York, 1830, p. 174, title 2, part 3, ch. 1, §38; 2 Edm. R. S. (N. Y.), 180. The construction of the exception in the statute above referred to has been frequently passed upon by the courts of New York, and many of the decisions below referred to were made before the section was adopted by the legislature of this state. The conclusion
The second proposition was established in the early decisions' of the court of chancery (Craig v. Hone, 2 Edw. Ch., 569, and Hallett v. Thompson, supra); and, although there have been some dissenting opinions on the part of some of the judges, the proposition has been quite uniformly sustained. See Williams v. Thorn, supra. To sustain this latter proposition the courts of New York rely mainly upon the fact that the statutes of that state expressly provide that a trust to receive the rents and profits of land and apply them to the use
The courts of New York have also arrived at the conclusion that the surplus of the income of such trust estate, over and above what is necessary for the support of the debtor, may be subjected to the payment of his debts, notwithstanding the exception in section 38, tit. 2, pt. 3, ch. 1, art. 3, 1 R. S. N. Y., 1830, for the reason that section 57, tit. 2, pt. 2, ch. 1, art. 2, 1 R. S. N. Y., provides that where a trust is created to receive the rents and profits of lands, and no valid direction for accumulation is given, the surplus of such rent's and profits beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, shall be liable in equity to the claims of the creditors of such person in the same manner as other personal property which cannot be reached by an execution at law. Section 2083, R. S. 1878, of our law, is the same ás the section quoted from the statutes of New York. The courts of New York conclude that the exception in section 38, referred to, was not in
The language of the exception in section 38 is broad enough to cover all trusts of the kind mentioned in section 57; but as it is clear that the exception was not intended to cover the cases provided for in section 57, they also hold that it will not be presumed that the exception was intended to protect a trust in personal property to apply the income thereof to the support and maintenance of the debtor any further than it is necessary for his support and maintenance, and when the income derived from the trust property is greater than needed for such support, the surplus will also be applied 'to the payment of his debts, the same as though such income were deducted from the rents and profits of real estate held in trust for his support. Some of the j udges hold that it is against public policy to permit any person to enjoy an income much larger than is necessary for his reasonable support, exempt from the claims of his creditors, and that therefore they will not presume the exception was intended to cover such a case. This latter view of the case is in accord with the provisions of our constitution upon the subject of exemptions, which provide that “the privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted.” Sec. 17, art. I, Const. Wis.
The cases in which these questions have been discussed and passed upon by the New York courts are the following: Craig v. Hone, 2 Edw. Ch., 569; Hallett v. Thompson, 5 Paige, 583; Clute v. Bool, 8 Paige, 83; Rider v. Mason, 4 Sandf. Ch., 351; Sillick v. Mason, 2 Barb. Ch., 79; Scott v. Nevins, 6 Duer, 672; Graff v. Bonnett, 31 N. Y., 9; Locke v. Mabbett,
The trus't created in regard to the shares of stock in the case at bar is not a trust to pay over the income of the stock, or any part of it, to the defendant John Sehlitz. The existence of the trust estate is for the benefit of the widow of the deceased, and is to terminate with her death. Its existence does not in any way interfere with the sale, transfer or assignment of the interest of John Sehlitz in such stock. So far as he is concerned, his title is as absolute and untrammelled as though there had been an absolute bequest of the stock to him, to be delivered over at the decease of the testator. Ilis interest in the stock is therefore subject to be applied to the payment of his debts as much as any other property owned by him.
If the trustees hold this stock in trust for the defendant John Sehlitz, so far as his estate therein is concerned, they hold it as a naked trust. It is a trust merely to convey to him the legal title when he shall become entitled to the possession of the property under the devise. Until that time arrives, they hold the property in trust for the widow, and not the defendant. In such case, if it were a trust in real estate, the interest of the oestui que trust could be seized and sold on the
We have some doubt whether the plaintiff has demanded the proper relief in his complaint; but that is no ground of objection to the complaint upon this demurrer.
By the Court.- — ■ The order of the circuit court is affirmed, and the cause remanded for further proceedings according to law.