Price v. Osborn

34 Wis. 34 | Wis. | 1874

Cole, J.

In this case the court below found as facts established by the evidence, that the deed mentioned in the pleadings was executed by Metcalf and wife to the plaintiff, and, after being duly witnessed and acknowledged, was delivered to him as the grantee therein; that the plaintiff retained the deed for sevéral -weeks, and then surrendered it to his grantor for the purpose of having a new conveyance of the property executed to his wife, the defendant Pamela Price. And the court furthermore found that no new conveyance was in fact made, otherwise than by erasing the name “ Harrison ” from the deed previously delivered, wherever that name occurred, and by inserting in lieu thereof the name “ Pamela; ” and that the conveyance, as thus altered, was placed upon record. This conveyance was executed, as the proof shows, in the spring of 1856, and was recorded in June following.

Now if this finding of the county court were Warranted by the evidence, it would raise the interesting question as to how far the plaintiff might claim and assert title under that deed, after having voluntarily consented to its alteration or destruction, and what aid a court of equity would afford on his application to set aside a conveyance which he had thus directed to be made to his wife. From the view which we have taken of the case, it is not necessary to consider and decide this question. (But see Parker v. Kane, 4 Wis., 1, and Wilke v. Wilke, 28 id., 296; also Hilmert v. Christian, 29 id., 104) We are clearly of the opinion that the conclusion reached by the county court is against the decided weight of testimony, and can not be adopted. We shall not go into any discussion of the evidence, but will content ourselves with the remark, that while there is a direct conflict in the statements of the witnesses upon the subject, yet we have no doubt that Colby and Judge Small state the facts in regard to the execution and delivery of the deed substantially as they occurred. The former drew the deed, and the latter took the acknowledgment, and they therefore had the best means of information about the matter concerning which they were called upon to testify. And according to their history of the transaction, a deed was first drawn in which the plaintiff was named as the grantee, but, before its execution, the grantee’s name was changed from “Harrison Price ” to “ Pamela Price,” at the request or by the direction of the plaintiff; and after the deed was so changed, it was executed, acknowledged and delivered, and was subsequently taken by Judge Small and placed upon record at the plaintiff’s request, who paid for recording the same. And the statements of Judge Small as to the facts attending the record of the deed are amply sustained, not only by his account books, but by the register and the written memorandum on the deed, which the register says is in his handwriting. We therefore have no hesitation in adopting the statements of Judge Small and Colby as- being reliable, notwithstanding they are flatly contradicted by the plaintiff. We can attach but very little weight to the testimony of the witness Metcalf, when we consider the answer that he put in, which was sworn to, and his confused manner of testifying. We can readily believe him when he says that his memory is not good, and that he is not “ famous for recollecting.” It is quite evident that he is not. Accepting, therefore, as substantially correct the account given by Colby and Judge Small about the execution and delivery of the deed, there can be no doubt that the title of the premises became vested in Mrs. Price, who could convey the same in like manner and effect, under our statute, as if she were unmarried. This is the express language of sec. 2, ch. 86, R. S., which controls the transaction. It will be remembered that the rights of creditors are not involved, but the naked question is, whether the plaintiff is entitled to have the deed set aside which was made to his wife by his direction, and further to annul the conveyance which she executed to her co-defendant Osborn, in December, 1866. And we really know of no principle which will warrant a court of equity in granting him that relief upon the facts of this case. It is said that the entire consideration for the premises was paid by him to Metcalf, and that all the improvements have been made at his expense. Assuming that this is correct — although Mrs. Price denies that such was the fact —■ still we can not see that the plaintiff’s position is essentially improved. It seems to us that there is no ground for claiming that these conveyances were made in fraud of his rights. He saw fit to have the title of the property conveyed to her, which conveyance was in the nature of a voluntary settlement. Such settlements are valid in a court of equity, when not made in fraud of the.rights of creditors. Putnam v. Bicknell, 18 Wis., 333; and Pike v. Miles, 23 id., 164. See also Beard v. Dedolph, 29 id., 136. It is also suggested that this property was used and occupied as the homestead of the family, and that therefore Mrs. Price could not convey it without the consent of the' husband. The evidence shows that the real estate is the property of Mrs. Price, conveyed to her by Metcalf years ago, by the direction of the husband, when perhaps there was more sympathy and affection between him and his wife than now exists; and the statute confers upon her the power to dispose of this property with like effect as if she were unmarried. It seems to us there is really no room for serious discussion upon this point, in view of the explicit language of the provision above referred to.

It follows from these views that the judgment of the county court must be reversed, and the cause remanded with directions to dismiss the complaint.

By the Court. — It is so ordered.