Plewa v. St. Josaphat's Congregation

153 Wis. 276 | Wis. | 1913

Kerwin, J.

It appears from the findings that the plaintiff failed to make a case against the defendants. It is established that the property was conveyed for a full and valuable consideration and without any fraudulent intent, but on the contrary with the intent and purpose of paying to the creditors pro rata the fuE value of the property and more, because it appears in the case that the property was worth but $400,000, incumbered by a mortgage of $200,000, and that the grantee assumed the payment of the mortgage and also agreed to pay seventy-five per cent, to the unsecured creditors, which aggregated over $200,000, and that all such creditors have been paid seventy-five per cent, of their claims, except plaintiff, and that seventy-five per cent, of his claim has been tendered to him. So that instead of there having been any intent to defraud creditors, it is conclusively established that the conveyance was made for their benefit and without any intent whatever to defraud any creditor or other person.

Sec. 2320, Stats., malees every conveyance in writing of any estate or interest in land made with intent to hinder, delay, or defraud creditors or other persons of their lawful actions, damages, forfeitures, or demands void, and sec. 2323, Stats., makes the question of fraudulent intent a question of fact and not of law, and further provides that a conveyance shall not be adjudged fraudulent as against creditors or purchasers solely on the ground that it was not founded on a valuable consideration. The court below found all the facts against the plaintiff, and these findings are well supported by the evidence and cannot be disturbed. Loeb v. O’Brien, 93 Wis. 249, 67 N. W. 415; Kaufer v. Walsh, 88 Wis. 63, 59 N. W. 460; Rosenheimer v. Krenn, 126 Wis. 617, 106 N. W. 20.

Counsel for appellant stated in their complaint and frankly admitted on oral argument here that there was no actual intent to defraud plaintiff and no purpose of that kind entertained by any of the parties concerned in the transaction. But it is alleged that the deed is constructively fraudulent, therefore as matter of law was made with intent to hinder and delay plaintiff in the enforcement of his debt against the judgment debtor and its property. This contention cannot be sustained. On the established facts it is clear that there was no constructive fraud. Appellant relied under this head upon Ryan D. Co. v. Hvambsahl, 89 Wis. 61, 61 N. W. 299, but that case does not reach the situation here, and moreover it was overruled by this court in the late case of St. Louis C. P. Co. v. Christopher, 152 Wis. 603, 140 N. W. 351.

It is also claimed by appellant that the conveyance amounted to a voluntary assignment and is void because not in compliance with the statute under the rule of Winner v. Hoyt, 66 Wis. 227, 28 N. W. 380, and subsequent cases in this court. Whether the rule of Winner v. Hoyt would apply to this case in the absence of legislation we need not consider, because the legislature has changed the rule of that case by ch. 334, Laws of 1897. Gilbert P. Co. v. Whiting P. Co. 123 Wis. 472, 102 N. W. 20.

Upon the findings of the court below there is no ground for the contention that any fraud, constructive or otherwise, was established. Gilbert P. Co. v. Whiting P. Co., supra; Corry v. Shea, 144 Wis. 135, 128 N. W. 892; Hyde v. Chapman, 33 Wis. 391; St. Louis C. P. Co. v. Christopher, supra, and cases cited. We think the judgment below is right and must be affirmed.

By the Court. — Judgment affirmed.