Pike v. Miles

23 Wis. 164 | Wis. | 1868

Paine, J.

The court below found, and the proof sustains the finding, that at the time Frederick B. Miles conveyed his homestead to his wife, he was worth $75,000, over and above his debts, exclusive of the homestead itself. The homestead was worth about $40,000, containing something over the quarter of an acre which by law was exempt from execution, the excess being of the value of from $4,000 to $5,000.

This court has decided, in Dreutzer v. Bell, 11 Wis. 118, that a conveyance of the homestead by the husband to.the wife cannot be held fraudulent as to creditors, for the reason that, being exempt, it was no more beyond their reach after the conveyance than before: It was not liable for their debts at all. And that decision is applicable here, as to so much of the property conveyed as was exempt from execution. See also Legro v. Lord, 10 Maine, 161. It is unnecessary to determine whether the conveyance might have been avoided as to the excess beyond the quarter of an acre, by creditors existing at the time. For the debts of the plaintiffs in this case were contracted subsequent to the conveyance, and the question is, whether there are any grounds for avoiding the conveyance eithér in whole or in part as to them. As to the portion exempt, of course they stand in no better position than existing creditors would have had. As to the portion not exempt, the conveyance must be regarded as a voluntary settlement upon the wife by the husband. And in regard to that, if it was not unreasonable in its character in view of the property and situation of the husband, and there was no fraudulent intent in fact, I think the law is that it cannot be impeached by a subsequent creditor. There are authorities • that sustain the same rule as to existing creditors. But subsequent creditors are in a less favorable position, because their debts, being contracted after the conveyance they seek to. impeach, cannot be said to have been incurred on the faith of the property conveyed. In addition to the authorities cited by the respondents’ counsel upon this point, the following may also be referred to: Benton v. Jones, 8 Conn. 185; Converse v. Hartley, 31 id. 372; Pomeroy v. Bailey, 43 N. H. 118; Sexton v. Wheaton, 8 Wheat. 242; Hinde’s Lessee v. Longworth, 11 id. 211; Townsend v. Maynard, 45 Pa. St. 198; Beal v. Warren, 2 Gray, 447; Moore v. Blondheim, 19 Md. 172; Thacher v. Phinney, 7 Allen, 146; Lyman v. Cessford, 15 Iowa, 229.

The including of the excess over what was exempt, in the conveyance to the wife, cannot be regarded as unreasonable in view of the condition of Frederick B. Miles at that time. And it seems very clear, as the court below found, that there could have been no actual fraudulent intent, either as to existing or subsequent creditors. This being so, applying the rule of law established by the authorities above cited, it follows that the conveyance cannot be impeached by these plaintiffs.

The case of Mullen and Wife v. Wilson, 44 Pa. St. 413, relied on by the appellants’ counsel, is not inconsistent with the doctrine of the cases above cited, for it was based upon the idea of an actual fraudulent intent as against the subsequent creditors.

I do not think the language of some of the cases relied on by the appellants, to the effect that a voluntary conveyance by one largely indebted at the time is void as to creditors, should be taken in an absolute sense. In order to give it that effect, they mean that he must be largely indebted in comparison to the amount of his assets. A man with property worth only $1,000 and owing $900, might be said to be largely indebted within the meaning of those cases. But if he had $100,000 of property, and owed $25,000, I think he would not. The true question is better stated in the other cases, found among those above cited, which hold that the inquiry is not whether the grantor was indebted, but whether he had ample and abundant means to satisfy all his debts after the conveyance. That he had in this case abundantly appears, taking his statements as true, and there was no evidence to contradict them. Nor is there any thing to show that this estimate of his assets depended on the success of adventures which he then had at risk; as was the case in Carpenter v. Roe, 10 N. Y. 227. On the contrary, he swears that he then owned, in property exclusive of his homestead, $75,000 more than enough to pay his debts. The exhibit showing the amount of his debts and assets in July, 1865, the month in which this conveyance was made, shows debts something over $82,000, and assets something over $213,000. This, taken in connection with the fact that the great bulk of the property conveyed to his wife was a homestead, absolutely exempt from execution, seems wholly to exclude all idea of any fraudulent intent as to creditors, with respect to the comparatively small amount of the excess over the exemption, and all idea of placing that amount beyond the contingencies of his business. I can see, therefore, no ground for disturbing the conveyance in favor of these plaintiffs.

It appeared by a stipulation in the case, subject to objection for irrelevancy and in competency, that since the commencement of this suit the wife and husband have mortgaged the property for $12,000 lent to the wife, and which she has invested in a milling business, in which she employs her husband at a‘ salary; and also that they had mortgaged it to secure some debts of the husband. The appellants’ counsel then contends that even though this property is to be regarded as the wife’s, yet it is not to be regarded as her separate estate, as to which she has the powers and rights given by our statute in regard to the separate estate of maried women, because she derived this from her husband, while the statute applies only to real estate derived bv married women from other sources. In this I think he is correct. But he then contends that it follows that this money raised by the mortgage was the husband’s money, and that his creditors are entitled to it. This question we shall not determine, for the reason that this mortgage was madé after this suit was begun, and the money raised by it has been invested in the wife’s name in other real estate. If the plaintiffs have any remedy in respect to that, they should have averred the facts by a supplemental complaint, and asked the appropriate relief. The evidence, being objected to as incompetent under the pleadings, should have been excluded.

I think the judgment should be affirmed.

By the Court — Judgment affirmed.