65 Wis. 71 | Wis. | 1886
Tbe plaintiff claims title to the land in controversy by virtue of a sheriff’s deed. • That deed was executed to him upon an execution sale made on a judgment in his favor against "William J. Pennybacker. The judgment was docketed September 26,1879, the execution issued and the land sold July 26, 1880. The- certificate of sale was filed in the register’s office, August 5,1880, and, there being no redemption, the sheriff executed a deed to the plaintiff in due form, February 18, 1882. It is an admitted fact that the title to the land was in William J. Penny-backer February 26,1878. On that day Pennybacker and wife conveyed the land to one B. F. Salzman for the nominal consideration of $2,500. This deed was not delivered to Salzman until after it was recorded, and, within a week or two after Salzman received it, he and. his wife executed a conveyance of the land to Mary C. Pennybacker, the wife of W. J. This deed bears date September 26, 1878, and was recorded October 2, 1878. The consideration stated in the deed was $2,500, but the proof is conclusive that no consideration whatever was paid by Salzman, or received by him from any one, for either of these conveyances. September 28,1880, Mary C. Pennybacker conveyed the land to the defendant Hunt. This deed was recorded September 30, 1880, and October 8, 1880, another deed was executed by her to Hunt, to correct a mistake in the former deed. Hunt paid $800 in cash, and gave his notes and a mortgage on the land due in ten years for the balance of the consideration.
blow it is claimed by the plaintiff that the conveyances from Pennybacker and wife to Salzman, and from Salzman
The defendants’ counsel insists that the court erred in holding, as a matter of law, that these conveyances were void; but that the question as to their fraudulent character should have been submitted to the -jury upon all the evidence. "We think this position is correct. The statute declares that the question of fraudulent intent in all cases arising under it shall be deemed a question of fact, and not one of law, and that no conveyance shall be adjudged fraudulent as against creditor’s solely on the ground that it was not founded on a valuable consideration. Sec. 2323, R. S.; Hyde v. Chapman, 33 Wis. 391; Barkow v. Sanger, 47 Wis. 500. In the latter case, Mr. Justice Taylob, by way of query, suggests whether it is necessary to submit the question of fraudulent intent to a jury as a fact where the evidence upon the point is so conclusive and overwhelming as to such fraudulent intent as would justify the court in directing the jury to find such fact; but the policy of the statute clearly is to have the question submitted as one of fact, and not decided as a matter of law. Whether a mere formal submission is necessary, where the evidence is undisputed and decisive as to the fraudulent intent, we shall not at
But plaintiff’s counsel further contend that the conveyance to Mrs. Pennybacker was presumptively void, and that this presumption could only be overcome by showing, by clear and satisfactory evidence, that the purchase by her was for a valuable consideration which was paid out of her separate estate or by some other person for her. The bur
The court further charged that, though Mrs. Penny-backer’s title as against a prior creditor of her husband was void, nevertheless she was invested with the formal title to the land, and could convey a good title to the same to a purchaser in good faith for value. The court also said that the plaintiff claimed that the deed to the defendant Hunt was made by Mrs. Pennybacker with intent to hinder, delay, and defraud the creditors of her husband, and that Hunt knew of such intent, or had knowledge of facts and circumstances naturally and justly calculated to awaken suspicion of it in the mind of a man of ordinary cai’e and prudence; and the jury were directed that, in order to sustain the claim of the plaintiff that the deed from Mrs. Pennybacker to Hunt was void, two things must be established by proof: (1) That Mrs. Pennybacker, in making the conveyance to Hunt, intended to defraud, hinder, or delay her husband’s creditors; (2) knowledge of such intent on the part of Hunt, or knowledge of such facts and circumstances by him as ought to have put him upon inquiry and would have led to his ascertaining the truth, or would have afforded a reasonable ground for the inference that he purposely or negligently omitted to make such inquiries as an ordinarily pru
It is claimed that the decisions in New York hold a stricter rule as to what would be deemed “actual” or “ previous ” notice to the purchaser of the fraudulent intent.
We shall not discuss the facts bearing on the question of notice. We will only say there was sufficient evidence to carry that question to the jury, and there was no error in the charge on this branch of the case of which the defendant can complain. But for the error in the charge already noticed there must be a new trial.
By the Oourt.— The judgment of the circuit court is reversed, and a new trial ordered.