Main v. Bosworth, 77 Wis. 660

77 Wis. 660 | Wis. | 1890

Lvorr, J.

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 of the judgment debtor in the land so purchased, without regard to the state of the record title. The lien of a judgment which the statute gives (R. S. sec. 2902) is upon the real property of the judgment debtor in the county in which the judgment is docketed, not upon the real property therein the title to which appears by the records in the proper offices to be in such debtor. An apt illustration of this is found in the present case. The mortgage for $600 on this land, executed by Gilbert S.. Main, was not recorded until after the transcript of appellant’s judgment had been duly filed in Outagamie county, yet it is not claimed here that the lien of the judgment is paramount to such after-recorded mortgage. Eor the same reason, the question of the interest of the judgment debtor in the land is not affected by the existence or absence of knowledge by the appellants, or notice to them, whether actual or constructive, of the parol trust or agreement to reconvey, pursuant to which the plaintiff and his wife conveyed the land to the judgment debtor, and he reconveyed the same to the plaintiff. "Were this otherwise, probably the fact that the plaintiff never parted with the actual possession of the land would be sufficient to charge the appellants with constructive notice of the parol trust under which the judgment debtor held the legal title thereto.

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 compelled to execute the trust by reconveying the land to plaintiff, yet he was under the strongest moral obligation to do so. To the extent of such obligation, plaintiff was the equitable owner of the land when the transcript of appellants’ judgment was filed in Outagamie county, the judgment debtor holding only the naked legal title in trust for the plaintiff. Had the trust been created by a writing duly signed, the judgment debtor would have had no interest in the land which could have been reached by the appellants’ judgment and execution.

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.