Gross v. Gross

94 Wis. 14 | Wis. | 1896

Cassoday, C. J.

The principal question here involved is whether the findings of fact are contrary to the clear preponderance of the evidence. The real contest in the trial court as to the real estate was whether the title was in Leopold Gross at the time of his death, as it appeared to be by the public records, or whether he and his wife had, nearly sis years before, conveyed the same to Bernhard and Jacob Gross, by deed bearing date February 10, 1888, but which had not been recorded. If it was so conveyed, as found by the trial court, then it is obvious that Oatherine acquired no title by virtue of the devise in Leopold’s will; and hence she conveyed no title to her daughter, Mrs. Singer, by the deeds she gave. If the legal title to the land was vested in Bernhard and Jacob Gross by virtue of the deed of February 10,1888, then “ the occupation of such premises ” by any other persons between that time and the death of Leopold, October 23,1893, must “be deemed to have been under and in subordination to the legal title ” so acquired, unless it appears that such occupancy and possession was adverse to such legal title. B. S. sec. 4210; Schwallback v. C., M. & St. P. R. Co. 69 Wis. 292; S. C. 73 Wis. 137; Hacker v. Horlemus, 74 Wis. 21; Nau v. Brunette, 79 Wis. 672. There is no claim that the deed of February 10, 1888, does not, upon its face, appear to be under seal, and in proper form, and duly witnessed and acknowledged, so as to entitle the same to be recorded. The real contest in the trial court as to the personal property was as to whether the plaintiffs advanced the amount of the bid, $4,080, on the sheriffs sale, and thereupon took a bill of sale thereof from Leopold, as found by the trial court. If the title of the personal property did pass to the plaintiffs by such bill of sale, as found by the trial court, then, obviously, neither Catherine, as such legatee, nor Joseph, as such administrator, acquired any right thereto by virtue of the will.

The execution and delivery of the bill of sale, and the execution and delivery of the deed of February 10, 1888, were sharply contested in the trial court; and all the findings of fact were in favor of the plaintiffs. The learned trial judge carefully expressed his opinion in writing upon the subject, and the same is embraced in the foregoing statement. We fully approve of what he there says on the subject, and so it is unnecessary to repeat what is there said. As indicated in that opinion, the rights of creditors of any of the parties are not here involved. Although the transfers and conveyances may have been made with the intent to hinder, delay, or defraud creditors, and hence void as against such creditors, under the statute, nevertheless they were valid as between the parties. R. S. sec. 2320; Clemens v. Clemens, 28 Wis. 637; Dietrich v. Koch, 35 Wis. 618; Davy v. Kelley, 66 Wis. 452; Weber v. Weber, 90 Wis. 467.

The improper admission of evidence is not a ground of reversal in an equity case. The respective parties claim under the deceased. This being so, evidence of any transaction between the deceased and either of such parties was properly excluded.

The relief given to Bernhard and Jacob was incidental to the relief granted to the plaintiffs. The findings of the court are, as we think, sustained by the evidence. TJpon the facts found, it is obvious that Joseph acquired no interest in the property under the will, as administrator or otherwise. Numerous errors are assigned, but they are all disposed of by the findings of the court and what has been said.

By the Court.— The judgment of the superior court of Milwaukee county is affirmed.