104 Wis. 488 | Wis. | 1899
The fact that the plaintiff was a creditor of the main defendant and had obtained judgment on its claim before trial of the garnishee action was established without dispute. The evidence also showed beyond controversy that there'was an honest debt, amounting to $2,700, owing from the main defendant to the assignor of tho garnishees when the first chattel mortgage was given, and that such debt was thereafter transferred to the garnishees, and remained their . property, save for certain small payments, up to the time of the seizure of the mortgaged property, and the only serious question necessary for consideration is whether the evidence shows conclusively that the last mortgage, which was given about a month before the seizure, was fraudulent as to creditors of'the main defendant, of whom the plaintiff was one. Upon well-established principles this question must be answered in the affirmative. The evidence shows that all of the successive mortgages covered a stock of goods consisting of drugs and wall paper, of which the main defendant was' in possession all of .the time up to the time of the seizure of the stock by the garnishees on the 19th day of July, 1897. During all of this time the main defendant conducted the business, using the proceeds of the sales as he pleased. The main defendant testified, in substance, that the stock of goods constituted his entire property except a homestead, and that during the entire time and until July 19, 1897, he conducted the business, sold the goods, used the proceeds as he pleased for the support of himself and family, the running expenses of the store, and the payment of private debts; that his brothers, Frank and Will (the garnishees) knew that he was selling the goods and using the proceeds for his own use; that they were in the store frequently, and that he thinks it was understood by him with them, when the later mortgages were given, that he should continue in the same way. Later, however, he denied that it was agreed that he should use any of the proceeds of sales for his own
A claim seems to have been made upon the trial that the stock was turned over by the main defendant and received by the garnishees in payment of the debt, and an amendment of the garnishees’ answer to this effect was allowed by the court at the close of the trial. As to this claim it is sufficient to say that there is absolutely no evidence to sustain it. All the evidence on-the subject shows that the mortgagees took the property under the terms of their mortgage, and not in payment or extinguishment of the debt.
The case was tried as though it,were an equitable action.
By the Ooiurt.— Judgment reversed, and action remanded with directions to render judgment for the plaintiff in accordance with this opinion.