Fick v. Mulholland

48 Wis. 310 | Wis. | 1880

Outon, J.

The plaintiff in this action claims the ownership of. the property in question by a conveyance from one Christian Rich, and the defendant justifies the taking by certain attachments and executions in his hands, as sheriff, against Christian Fick, on the ground of fraud in such conveyance.

The special findings of the jury are clearly inconsistent and contradictory, if they do not warrant- a general finding for the plaintiff on this issue.

The findings on this question'were: “First. Did Christian Fick convey to the plaintiff, for a valuable consideration expressed in the deed of conveyance, the property described in the complaint in this action, on the 14th of December, 1876? A. Tie did.” “ Second. If you answer that he did, then was such consideration adequate to the value of the property? A. It was.” “ Third. Did the plaintiff know that Christian Fick was indebted to any persons other than persons holding mortgages on the premises, which he assumed to pay? A. He did not.” “ Sixth. At the time of the sale of the property to him by Christian Fick, did the plaintiff, Fred. Ficlc, know that Christian Fick was in failing circumstances? A. lie did.” “ Seventh. Did Christian Fick make the sale of the brewery property in suit to the plaintiff, Fred. Fick, in good faith, and without any intent to defraud his creditors? A. He did not.” “ Fighth. If you answer that he did not, then did Fred. Fick, at the time of said sale to him, know of such fraudulent intent on the part of Christian Fick? A. He did.”

The inconsistency and contradiction of these findings are obvious at a glance. The jury find that the plaintiff bought the property for a valuable and adequate consideration, without knowing that Christian Fick was indebted in any sum whatever to any one except to those whose claims he had assumed as part consideration of the purchase; and yet they find that Christian made the sale with intent to defraud his creditors, and that the plaintiff knew it. Christian Fick, at the time of the sale, according to the proof, was indebted only to a very small and inconsiderable amount above the claims assumed by the plaintiff; and the jury find that the plaintiff did not even know that he was indebted at all beyond the claims he had assumed, and that he did know that Christian was in failing circumstances.

The natural presumpition, which should be the legal presumption also, from these findings, is, that the plaintiff supposed he was relieving Christian Eiek of all of his indebtedness, by assuming the mortgages on his property, and that these mortgages constituted his failing circumstances. The plaintiff’s knowledge of the fraudulent intent of Christian Fick in making the sale to him, must therefore have reference only to future or subsequent creditors; and there is not a particle of evidence in the case to show that the plaintiff made the purchase with any such reference, or with any such intent. It is elementary, that fraud must be proved by clear and satisfactory evidence.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial therein.