223 Wis. 168 | Wis. | 1936
The facts are not in dispute. For many years prior to March 8, 1934, the defendant Ernest Froelich and Lizzie Froelich, his wife, resided on a farm in Shawano county. The farm belonged to Lizzie Froelich. Ernest Froelich owned no real estate. On December 20, 1930, Ernest Froelich made, executed, and delivered to the plaintiff his promissory note, wherein and whereby, for value received, he promised to pay to the plaintiff, six months after date, the sum of $300, together with interest. On March 13, 1934, Lizzie Froelich, who was then seriously ill and about to undergo a major surgical operation, asked that Mr. Eber-lein, her attorney, be requested to come out to her farm that she might dispose of her property in accordance with her wishes, before going to the hospital. Mr. Eberlein responded to the call. He arrived at the Froelich farm about 9 o’clock in the evening. Mrs, Froelich was in a bedroom just off of
The plaintiff contends that, since the warranty deed from Mrs. Froelich to her husband was absolute in form, it conveyed an absolute title, and therefore parol evidence was in
Fiad the court found that the deed from Ernest Froelich to E. J. Froelich and Grace Froelich was given with intent to delay, hinder, or defraud creditors, such finding clearly would be against the great weight and clear preponderance of the evidence. It is as clear as anything can be that it was the intention of Mrs. Froelich to convey the lands to her husband so that he might carry out her wishes and fulfil the oral agreement entered into' by all of the parties concerned at the time the deed was executed. In our opinion the facts unquestionably show, as the trial court found, that Ernest Froelich was a mere intermediary through which the title passed to E. J. Froelich and Grace Froelich.
If an action were brought by the parties interested to reform the deed, it is very clear that reformation would have to be decreed. Walden v. Skinner, 101 U. S. 577; Bunn v. Mitchell, 27 N. J. Eq. 54; Davenport v. Stephens, 95 Wis. 456, 70 N. W. 661; Sullivan v. Bruhling, 66 Wis. 472, 29 N. W. 211.
If Ernest Froelich claimed absolute title to the lands, equity no doubt would decree a trust. Davenport v. Stephens, supra; 2 Pomeroy, Eq. Jur. §§ 1037-1043. Com
“ (1) Where the owner of an interest in land transfers it inter vivos to another in trust for a third person, but no memorandum properly evidencing the intention to create a trust is signed, and the transferee refuses to perform the trust, the transferee holds the interest upon a constructive trust for a third person, if, but only if,
“(a) The transferee by fraud, duress or undue influence prevented the transferor from creating an enforceable interest in the third person, or
“(b) The transferee at the time of the transfer was in a confidential relation to the transferor, or
“(c) The transfer was made by the transferor in contemplation of death.”
When Ernest Froelich conveyed the lands, such conveyance had the effect of reforming the deed and supplied the place of, and was the equivalent in law to, a declaration of trust in the original deed. It related back to the execution of the original deed so as to pass title as of that date. Main v. Bosworth, 77 Wis. 660, 46 N. W. 1043; Davenport v. Stephens, supra. It is our opinion that the trial court was right in finding and concluding that the deed was not given by Ernest Froelich with the intention of hindering, delaying, or defrauding the plaintiff, but was truly given to carry out the purpose and intentions of Mrs. Froelich.
Whether the deed from Ernest Froelich to E. J. Froelich and Grace Froelich, together with the bond for support, constitutes a compliance with the wishes and purposes of Mrs. Froelich and a fulfilment of the oral trust, is a question in which the plaintiff, as a judgment creditor, can have no interest.
By the Court. — Judgment affirmed.