Eastman v. Schettler

13 Wis. 324 | Wis. | 1861

By the Court,

Cole, J.

It appears to us there is no ground for saying that the appellant was not in a situation to attack the validity of the sale from Dominique to Augustine Brunette.* He claimed as a purchaser at the sheriff's sale under a judgment against Dominique, and stands in reference to the property precisely in the place of the judgment creditor. If for any reason, as, for instance, fraud in that conveyance, tbe creditor could reach tbe property, and subject it t0 tbe payment of his judgment, then, clearly, tbe appellant could assail tbe conveyance for a like reason. He represented tbe judgment creditor and was clothed with bis rights, by virtue of bis purchase at tbe sheriff’s sale. This appears to us very obvious.

Tbe circuit court further held that tbe judgment recovered against Dominique Brunette in favor of Lawe’s executors, never became a lien upon tbe property. But it is manifest that whether tbe judgment became a lien or not, depended entirely upon tbe question as to, whether tbe conveyance from Dominique to bis son was valid or not. Tbe appellant contends that this conveyance was made with intent to binder and delay creditors. That is bis case. If be establishes that proposition, and shows that tbe conveyance was fraudulent and void as to creditors, then tbe judgment became a lien. It is worthy of remark, that tbe conveyance was made during tbe pendency of tbe suit in which judgment was recovered ; or at all events, tbe deed from Dominique to Augustine bore date March 2d, 1849, while it appears tbe suit was commenced a few days before that time. Tbe pendency of tbe suit, with other things, would undoubtedly be relied on by tbe appellant to establish tbe bad faith of tbe transaction. And if be made out bis case, and showed that tbe conveyance was void as to tbe creditors of Dominique Brunette, then it would be void as to him.

Of course we lay out of view entirely all questions which may arise upon tbe matters set up in tbe answer, if they should be established by tbe evidence, and also all questions growing out of tbe subsequent conveyance made by Dominique and Augustine in 1856 to tbe respondent. These matters will undoubtedly be relied upon by tbe respondent in bis defense to tbe action. But tbe circuit court did not reach tbe defense at all. It held that the appellant did not stand in tbe place of a creditor of Dominique Brunette, and therefore could not controvert tbe bona fides of tbe conveyance from him; and this view of tbe case we deem erroneous. If any authority were necessary to support tbe views webave expressed, we think they will, in effect, be sustained, by tbe cases cited upon tbe brief of tbe counsel for tbe spondent. Sands vs. Hildreth, 14 J. R., 492; Jackson vs. Terry, 13 id., 471; Jackson vs. Myers, 18 id., 425; Anderson vs. Boyd, id., 513; 4 Wis., 268; 7 id., 197; Reynolds vs. Vilas, 8 Wis., 471; 1 Smith’s Lead. Cases, 1.

Tbe judgment of tbe circuit court is therefore reversed, and a new trial ordered.