Palmer v. Hawes

80 Wis. 474 | Wis. | 1891

Cole, C. J.

There is no room to doubt that Mrs. Homes had the right to abandon the house and lot in the Third ward, where she and her husband had lived for many years, and occupy the brick store on Milwaukee street as and for a homestead. The law would permit her to make that change, and creditors could not object to it, though it might be unfavorable to their interests. True, it appeared that the first floor of this building had been used and occupied as a store, and the third floor as a photograph gallery, but the second floor had been occupied as a residence. The occupation and construction of the building show that it might well have the character of a homestead impressed upon it, and the proof is abundant that Mrs. Homes had selected and intended to occupy it as her homestead. Since the case of Phelps v. Rooney, 9 Wis. 71, it has been held that the building need not be devoted exclusively to the use of a home for the family in order to retain the character of a homestead, but parts of it might be used for business purposes. Harriman v. Queen Ins. Co. 49 Wis. 71. So the fact that portions of the brick store were used 'for other purposes than as a residence for the family would not deprive it of its homestead character, nor prevent Mrs. Homes from acquiring homestead rights therein. Of course, when she selected and occupied the store for her homestead, she necessarily abandoned or lost her rights in her former home. A person can have but one home at a time. “ He may have several houses at once, but only one can be his home at a time.” Jarvais v. Moe, 38 Wis. 440.

It seems to us equally clear that Mrs. Hawes might have sold her home in the Third ward and applied the proceeds of the sale to the payment of a mortgage on the brick' block, which R. F. Rexford held, and no creditor could justly complain of such an application of the money. As her counsel says, she had a perfect legal right to prefer one creditor over another, and to pay one just debt in preference to another. Now, suppose Rexford, instead of taking a second mortgage on the Third ward property, had purchased the equity of redemption in that property, and had applied, with the consent of Mrs. Homes, its value to the reduction of his mortgage on the brick store. Could a creditor complain of such a transaction as a legal fraud upon his rights? We think not. This, in fact, is what the learned circuit court found that the transaction amounted to. The circuit judge states that he finds that the mortgage given, mentioned in the testimony, on or about the 1st of March, 1887, was given for the purpose of reducing the indebtedness upon the homestead,-— meaning the store,— and for no other purpose. This finding is amply justified by the evidence, and could not consistently have been otherwise. We see no element of fraud in the transaction, nor anything of which creditors could complain. It is very obvious that when a debtor pays one creditor his ability or means to pay others is diminished, but that does not make such payment fraudulent in law. Therefore we fully agree with the court below in the conclusion that the evidence fails to show that Mrs. Hawes made any transfer of her property with intent to defraud her creditors. The transfer of the shoe .stock' to Rexford was for the purpose of reducing the incumbrance on the homestead, and so the court finds. This seems to have been an honest and fair transfer. If she had had the money value .of that stock, she could so have applied it on the mortgage, and no creditor could object to it.

But the plaintiff’s counsel says that Mrs. Hemes practically admitted that she made these transfers of her property to defeat the claim of Dr. Palmer. We do not think that this is a fair construction of her testimony. She was greatly embarrassed, and had not the means to pay the debts which were pressing on her. She wished to secure a home and improve her pecuniary condition. She took advice of counsel as to what she had better do under the circumstances. She changed her homestead, and made the transfers she did, following the advice given her. It is true, she was utterly insolvent at the time, but the evidence fails to show any fraudulent purpose on her part in preferring one creditor to another, or in giving Eexford the security she did for his debt. She was plainly endeavoring to save the store for her homestead, and she resorted to no unlawful means to accomplish that end.

The ground stated in the affidavit for the attachment was that Mrs. Hemes had assigned, conveyed, disposed of, and concealed a part of her property with intent to defraud creditors, and was about to make such a disposition of the remainder with a like fraudulent intent. The evidence does not establish the charge, and the court below properly vacated the attachment on the traverse.

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