Kapernick v. Louk

90 Wis. 232 | Wis. | 1895

Cassoday, J.

On June 2,1893, the defendant and his wife conveyed the forty acres of land mentioned in exchange for a deed of the north half of two lots, each 60 by 150 feet, in Three Lakes, then owned by the defendant’s mother, Althine Louk. The forty had no building thereon, and was worth some $500 or $600, and was so conveyed subject to a mortgage of $140. The premises so conveyed to the defendant by Ms mother were subject to a mortgage of $100. Some years prior to such conveyance the defendant had moved his meat market, worth about $175, thereon, and in August and September^ 1892, had built a dwelling house thereon, worth $200 or $225, and was living therein with his family at the time of such conveyances. There is evidence tending to prove that the forty acres so conveyed was worth something* more than the property so conveyed to the defendant by his mother, and that he had made some admissions to the effect that he had made the conveyance to beat the plaintiff out of his claim; but the evidence the other way is strong and positive, and sufficient to support the finding of the trial court.

The question of fraudulent intent in such cases must always be deemed a question of fact, and not of law, and no conveyance is to be adjudged fraudulent as against creditor's solely on the ground that it was not founded on a valuable consideration. R. S. sec. 2323. This court has always liberally construed the exemption laws. Zimmer v. Pauley, 51 Wis. 282; Hewett v. Allen, 54 Wis. 583; Scofield v. Hopkins, 61 Wis. 370. There is no evidence that the defendant was guilty of any actual fraud. The most that can be claimed is that the effect of his exchanging non exempt property for exempt property operated as a constructive fraud upon the plaintiff. Comstock v. Bechtel, 63 Wis. 656. The mere fact that such exchange may be highly advantageous to an insolvent debtor is not conclusive evidence of an intention to defraud his creditors. Palmer v. Hawes, 80 Wis. 474. Here the plaintiff not only fails to show by a preponderance of evidence that the defendant made such conveyance with such intent to defraud, but also fails to show that the defendant was insolvent at the time of making the conveyance. In fact it does not appear that he was indebted to any one, except to the plaintiff for the small amount for which this suit is brought.

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