Brinker v. Brinker

105 Wis. 231 | Wis. | 1900

"WiNslow, J.

There is no ground which we have been able to find in the record for disturbing the findings of fact upon which the voluntary deed from Henry Brinker to his wife through Damity was held to be fraudulent and void. The evidence was entirely sufficient to support such findings, and hence they must be considered as final.

A difficulty occurs as to lot 20, which necessitates modification of the judgment. As appears by the statement of facts, lots 19 and 20 were originally owned by the plaintiffs and the defendant Henry Brinker in undivided equal shares. The defendant then fraudulently conveyed his undivided half to his wife, Sophia. In the course of partition proceedings thereafter had, Sophia was awarded lot 20 and the plaintiffs lot 19; but, lot 20 being more valuable than lot 19, it was determined that Sophia should pay $1,000 to the plaintiffs to make an equal partition, which was done, and ■deeds of release were exchanged. The court held that this transaction gave neither the defendant Sophia nor the plaintiffs any more or less property than they had before the partition, and hence that it did not in any way affect the relief to which the plaintiffs were entitled.

The fallacy of this reasoning is apparent. While the division of the property was made an equal one by the payment of the $1,000, and neither party had any greater .amount of value than before, still the fact that Sophia had invested $1,000 of money in land, and hence had a greater interest in land than she had before, was lost sight of. She had converted $1,000 of money into land; hence her interest in real estate was greater in that amount. If this money was paid out of her separate estate, the interest in land which she purchased therewith was her separate property; •and, having been purchased of the plaintiffs, and paid for, .and not of her husband, the plaintiffs could not set the conveyance of that interest aside. If, however, as seems to be ■claimed, it was purchased with her husband’s money, and not with her separate estate, then the title to that extent vested in her, subject to a trust in favor of all of her husband’s creditors, and one of such creditors cannot, by an •action like the present, obtain a preference over the others. Miner v. Lane, 87 Wis. 348. In either event there can be no recovery which would affect that interest in this action, .and the judgment should be so framed as to secure to Sophia :an interest or lien upon lot 20 to the amount of $1,000 paramount to the claim of the plaintiffs.

So much of the judgment as divests the defendant Sophia Brink&r of an interest in or lien upon lot 20 to the extent -of $1,000 must be reversed, and the remainder of the judgment affirmed, and the action remanded, with directions to modify the judgment in accordance with this opinion, so as to preserve the rights of /Sophia Brinker as to said $1,000 interest or lien.

By the Court.— It is so ordered. No costs will be taxed in favor of either party, except the fees of the clerk of this ■court, which will be taxed against the respondents.