Hoffman v. Junk

51 Wis. 613 | Wis. | 1881

ORTON, J.

This suit is brought to subject to the payment of a judgment recovered against the defendant Jacob Junh, for breach of promise of marriage, lot 7 in block. 113 in the ninth ward of the city of Milwaukee, of the dimensions of 50 by 150 feet, or that portion of it not occupied by said Jacob as his homestead at the time of its conveyance to the defendant John Schwartz, on the ground that it was so conveyed in fraud of plaintiff’s rights. On the case made by the plaintiff, the counsel for the defendants moved for a nonsuit (or dismissal of the complaint), substantially on the grounds, (1) that the plaintiff was not a creditor of the said Junh at the time of such conveyance; and (2) that the whole premises were the homestead of the said Jacob at that time. This motion was sustained, presumably on both grounds.

The first ground was scarcely broad enough to cover the case claimed to have been made by the plaintiff; because, although the plaintiff may or may not have been a creditor of the said Jacob Jumh at the time of such conveyance, in the sense of the statute against fraudulent conveyances, yet she afterwards recovered a judgment for the breach of the promise of marriage then existing, and it may be that the conveyance was made in view of an intended breach of such promise, and in anticipation of a judgment for such breach, and with the intent to avoid its payment. A conveyance made with the intent to defraud the plaintiff as a subsequent judgment creditor, would come within the statute.

The evidence respecting the premises as a homestead at the time of the conveyance is very meager, and certainly far short of showing that the whole lot was not a homestead. It is conceded in the complaint that a greater portion of the lot was at the time the homestead of the said Jacob Junh, so that the onus was upon the plaintiff to prove that the whole lot was not a homestead; and we think such evidence was wholly wanting, and that the nonsuit was properly granted (or complaint dismissed) on that ground. On the north end of the lot was a small one-story house, in which the said Jacob Junk then lived. On the south end of the lot was a small inclosure by a lattice or lath-work fence, in which stood another small one-story house, built in 1868, and for a time afterwards occupied í>y a stranger, who had no title to any part of the lot, but with the consent of said Jacob Junk; and this house has since occasionally been occupied by a tenant of said Junk. The complaint states that there were outhouses on the lot, but as to where they were situated and as to their character or use, the evidence is silent. This evidence certainly does not show that the whole lot was not the homestead of Jacob Junk, under the numerous decisions of this court upon the question, and especially under the decision of this court in Harriman v. The Queen Ins. Co., 49 Wis., 71.

By the Court.— The judgment of the circuit court is affirmed.