77 Wis. 660 | Wis. | 1890
If the judgment of the appellants became a hen upon the land in question on filing the transcript thereof in Outagamie county, it was only a lien upon the actual interest therein of Gilbert S. Main, the judgment debtor. Hence it is necessary to determine what that interest was. This question is not affected by the registry laws, for a judgment creditor who purchases at his own execution sale in satisfaction of his judgment takes only the actual interest
The controlling question is, therefore, Had the judgment debtor any interest in the land when the transcript was filed in Outagamie county, upon which the appellants’ judgment became a lien, or which was subject to seizure and sale on the execution issued thereon? The question is not burdened with any considerations of fraud, for none is charged or intimated against any of the parties. The parol trust is valid at common law, and but for the statute of frauds (R. S. sec. 2302) might be enforced in equity. Because of the statute it cannot now be thus enforced, yet it is not a nullity. While Gilbei-t S. Main could not be com
But the trustee, in the discharge of his moral obligation to do so, has reconveyed the land to the plaintiff — thus executing the parol trust. "We think this conveyance, although executed after the transcript was filed in Outagamie county, cures the failure to create the trust in writing duly signed and places the plaintiff in the same position as though it had been so created, which, as a matter of course, includes the right to make proof of the parol trust thus executed. The only risk the plaintiff incurred by allowing the trust to rest in parol was that the trustee might dishonestly refuse to execute it. This doctrine is fairly deducible from the opinions and judgments of this court in Karr v. Washburn, 56 Wis. 303; First Nat. Bank v. Bertschy, 52 Wis. 438; Goodell v. Blumer, 41 Wis. 436. Those cases may differ from this case in some of their features, yet the principles there asserted are applicable here, and rule this case. Ho thing need be added to what is said in the opinions therein.
By the Gonri. — The judgment of the circuit court is affirmed.