53 Wis. 498 | Wis. | 1881
The defendant, as sheriff, levied an execution,
issued on a judgment, for costs, in the case of Mitchell & Co. against one Edward Fisher, on 600 bushels of wheat and 100 bushels of oats, raised on a farm of 160 acres occupied ostensibly by Edward Fisher and his family. Forty acres of this farm belonged to Edward Fisher before he was married to the plaintiff, Margaret Fisher, and the other 120 acres were purchased by him soon after such marriage, from one Walker, and the whole was occupied and cultivated together thereafter for about nine years, and in the same way, down to the time of this levy. After this suit of Mitchell & Co. against Edward Fisher was commenced, Edward Fisher conveyed the 160 acres to his brother James Fisher, and at the same time James conveyed the same to the plaintiff, the wife of Edward. In relation to these deeds James Fisher testified as follows: “ My brother has 27 acres of land where his house is.” “ She [the plaintiff] had spoken to me frequently about it, and the arrangement was that this land [the 160 acres] was to be hers, and he was-to own the homestead [the 27 acres].” “She claimed that it was paid for with her money, and she always claimed it.” “ That [40 acres of the 160] was not paid for with her-money.” “ I understood that the understanding was before, that she was to have the land. There was no talk about the money she had paid, or anything about that; my brother had spoken to me that, if anything happened, all the property should be hers, and he said all the property .should be settled before anything happened.” “ It was after the lawsuit with Warder, Mitchell & Co., that they were troubled about this property.”
In such a case the extract from the opinion in the ease of Hoxie v. Price, 31 Wis., 86, so aptly made by the learned counsel of the appellant in his brief, is especially applicable: “ On account of the great facilities which the marriage relation affords for the commission of fraud, these transactions between husband and wife should be closely examined and scrutinized to see that they are fair and honest, and not mere contrivances resorted to for the purpose of placing the husband’s property beyond the reach of his creditors.”
It is said by Mr. Justice Tatlok, in the opinion in the case of Horton v. Dewey, filed at the same time with this opinion: “ This court has repeatedly held that, in a contest between the creditors of a husband and the wife, if the wife claims ownership of the property 'by a purchase, the burden of proof is upon her to prove, by clear and satisfactory evidence, such purchase, and that the purchase was for a valuable consideration, paid by her out of her separate estate, or by some other person for her;” citing Stanton v. Kirsch, 6 Wis. 338; Horneffer v. Duress, 13 Wis., 603; Weymouth v. Railway Co., 17 Wis., 550; Duress v. Horneffer, 15 Wis., 195; Beard v. Dedolph, 29 Wis., 136; Stinson v. White, 20 Wis., 563; Elliott v. Bently, 17 Wis., 591; Putnam, v. Bicknell, 18 Wis., 333; Hannan v. Oxley, 23 Wis., 519; Fenelon v. Hogoboom, 31 Wis., 172; Hoxie v. Price, id., 82; Carpenter v. Tatro, 36 Wis., 297. And it is further said in that opinion: “In all such cases the burden of proof showing the bonafides of the purchase is upon her, and she must show by clear and satisfac
The evidence in this case certainly does not fulfill the requirements of the above rules; but perhaps the preponderance of the evidence against the verdict is not so clear as to justify the court in reversing the judgment solely on that ground, and further comment upon the evidence might prejudice the case upon another trial, and is unnecessary. Considering the weakness of the plaintiff’s case, on the evidence, we cannot but think that several of the instructions of the court bore much too strongly in her favor, and tended to supply a want of testimony, and, in application to the facts of the case, were erroneous in law, and were calculated to mislead, and probably did mislead, the jury to the prejudice of the appellant.
The second instruction was: “ Such a deed from husband to wife is valid if the money with which it is purchased was the separate money of the wife, and the deed to the husband when it was purchased ought to have been made to the wife.” -This instruction is divisible, and contains two distinct propositions: (1) The deed by the husband to the wife, and the money with which it is purchased was the separate money of the wife,— meaning clearly that the deed to the wife is valid if the money with which the wife purchased it of her husband was her separate money. This meaning is determined by the use of the present tense in the language “ with which it is purchased,” in connection with the deeding of the land by the husband to the wife. (2) “ And the deed to the husband when it was purchased ought to have been made to the wife,” clearly refers to another time, and the time when the husband first purchased the 160 acres, because the purchase and the deed to him are coupled together.
The first proposition, in this sense,— and we think the jury
The third instruction is erroneous for the same reason, and was as follows: “If a wife advances money belonging to her separate estate to her husband, with the agreement that land owned by him shall be conveyed to her in payment of the advances, and in pursuance of the agreement the husband conveys to the wife the land, it becomes legally hers, and the crops raised upon it by her, with the assistance of her husband and children, are hers.” This instruction not only makes the deed valid in this case, if made in consideration of any amount of “ advances ” made by the wife to the husband, however inadequate, but ignores entirely the question of fraud, and makes the deed valid, notwithstanding it might have been made with intent to defraud creditors.
The fourth instruction was: “If a husband conveys his land to his wife, either directly or to a third person, to be by him conveyed to the wife, for the purpose of defrauding his creditors, and the wife pays no consideration for it out of her separate estate, the conveyance is fraudulent as against creditors.” This clearly implies that both of these conditions must exist and concur in order to make the deed void: (1) if made for the purpose of defrauding creditors; and (2) if no considera
By the Court. — ■ The judgment of the circuit court is reversed, and the cause remanded for a new trial therein.