54 Wis. 652 | Wis. | 1882
Lead Opinion
The following opinion was filed February 7, 1882:
By the statute of Iowa, in evidence a married woman may receive grants or gifts of property from her husband without the intervention of trustees, and may convey her interest in real estate the same as other persons. Sections 1192, 1207, Iowa Code. Section 2206 of their code also provides that “a conveyance, transfer or lien, executed by either husband or wife, to or in favor of the other, shall be valid to the same extent as between other persons.” See Blake v. Blake, 7 Iowa, 46; Shields v. Keys, 24 Iowa, 298. Such being the law of that state, there can be no question but that Mrs. Pettibone had the legal capacity to convey the Dubuque lots to her husband. See Jones v. Brandt, 10 N. W. Rep., 854. By that conveyance she divested herself of all title in those lots, valued at $2,700, and vested the same absolutely in her husband. This being so, there can be no question but that she absolutely parted with a full and adequate consideration for the Waukesha lands purporting to be conveyed to her by her husband. Did she get title thereto by that conveyance? The land was in Wisconsin. She and her husband, at the time of the conveyance, were domiciled in Iowa. The agreement for the exchange of lands, and the deeds, were made and delivered in Iowa. Is the giving and taking of the deed to the Waukesha lands to be governed by the law of Wisconsin or Iowa? If the law of Iowa is to control, then the statute of that state clothed her with the legal capacity to take title directly from her husband,-and the same would be. valid at law. Counsel for the appellant insists that, as all transactions took place ¡in Iowa, the laws of that state must control in determining the
In Hannan v. Oxley, supra, it was held that “such a deed' cannot be impeached in equity, by heirs, on the ground that it-was made in consideration of property of the wife which'belonged in law to the husband.” In Beard v. Dedolph, supra,
Fenelon v. Hogoboom, supra, was an action for unlawful conversion, but the chattel mortgage from the husband directly to the wife was held good at law. Whether the same rule would obtain in case of real property it seems unnecessary here to determine; for this is a bill in equity, and, the wife having parted with full consideration, the defense is certainly equitable, and must prevail unless the transaction was tainted with fraud. Can we say, upon the evidence before us, that such was the fact? Whatever may have been the rule at common law, the statute of this state makes the question of fraudulent intent in making such conveyances, “ a question of fact, and not of law.” Section 2323, R. S.
The burden of proving, as a matter of fact, that the conveyance was made with the intent to defraud creditors was upon the plaintiff. Hyde v. Chapman, 33 Wis., 392; Barkow v. Sanger, 47 Wis., 500; Graham v. Railroad Co., 15 West. Jur., 69, and the numerous authorities cited in the note. Here there is no specific finding of fraudulent intent, but we think we are justified in finding such intent -on the part of Bronson Pettibone as a fair inference from the evidence. But can we find such intent on the part of Mrs. Pettibone? The court finds that the’exchange was made by the wife, “ at the simple request of said Bronson Pettibone, solely to comply with such request.” This finding goes to the full extent of the evidence. There is no evidence to show that the wife was aware of her husband’s insolvency, or that he was in embarrassed circumstances, or even indebted to the plaintiff or any one at the time; but the contrary. It is true, she seems to have acquiesced in the exchange as he suggested. But she must have known that she was parting absolutely with all title
We have recently held, in cases above cited, that such transactions should be subjected to close scrutiny, but we are unwilling to hold that they are presumptively fraudulent from the mere relation of the parties. In order to avoid a sale as being in fraud of creditors, both parties must be connected with the fraudulent design. Sterling v. Ripley, 3 Pinney, 155; Hopkins v. Langton, 30 Wis., 379. The same rule prevails in the courts of Iowa. Fifield v. Gaston, 12 Iowa, 218; Steele v. Ward, 25 Iowa, 535; Preston v. Turner, 36 Iowa, 671; Drummond v. Couse, 39 Iowa, 442; Kellogg v. Aherin, 48 Iowa, 299. The rule seems to be universal. Leach v. Francis, 41 Vt., 670; Partelo v. Harris, 26 Conn., 480; Ewing v. Runkle, 20 Ill., 448; Violett v. Violett, 2 Dana, 323; Foster v. Hall, 12 Pick., 89; Bryne v. Becker, 42 Mo., 264; Bancroft v. Blizzard, 13 Ohio, 30; Splawn v. Martin, 17 Ark., 146; Governor v. Campbell, 17 Ala., 566; Ruhl v. Phillips, 48 N. Y., 125; Jaeger v. Kelley, 52 N. Y., 274. It is thus established that before a conveyance, made.by a grantor with the intent to defraud his creditors, will be set aside as against the grantee, it must be made to appear that such grantee participated in or had knowledge of such intent. The evidence here being insufficient to establish such knowledge or intent on the part of Mrs. Pettibone, and she having parted with full value in exchange for the deed of the Waukesha lands, there would seem to be no equitable grounds for setting the same aside. This is especially so, since it is well established that she could not reclaim the Dubuque lands conveyed to her husband; for, as between the parties, such conveyance was valid,
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint.
Rehearing
The respondent moved for a rehearing; and the following opinion was filed May 10, 1882:
The statement of facts "in this case was neces- . sarily very brief, and merely indicated the view we took of the evidence in consultation, when both points urged for a rehearing were carefully considered, but perhaps not as clearly stated in the opinion as they should have been. The statement in the opinion that Mrs. Pettibone “ parted with a full and adequate consideration,” was perhaps in part an assumption. There may not have been a “full” consideration; but we thought then, and think now, that there was an “ adequate consideration,” or, at least, that the evidence failed to show that it was so grossly inadequate as' to raise a presumption or inference- of fraud on her part. It is to be remembered that there was no evidence as to the value of the Waukesha lands, and that the burden of proving fraud was on the plaintiff. It is true, as urged, that Mrs. Pettibone had no inchoate right of ■ dower in the Waukesha lands, and that she did retain an inchoate right in the Dubuque lots while she and her husband continued
Eor these reasons the motion must be denied.
By the Court. — Motion denied.
