Putnam v. Bicknell

18 Wis. 333 | Wis. | 1864

By the Court,

Dixow, C. J.

Though void at law, an absolute conveyance of real or personal property from the husband directly to his wife is good in equity, and sufficient, so far as the form is concerned, to divest the husband of such property, and to vest the same in the wife, as against all persons save the creditors of the husband, especially when the transfer is fairly made upon a meritorious or valuable consideration. Wallingsford v Allen, 10 Peters, 583; Deming v. Williams, 26 Conn. 220; Slanning v. Style, 3 P. Wms., 334; Lucas v. Lucas, 1 Atk., 270; Freemantle v. Bankes, 5 Ves., 79; Battersbee v. Farrington, 1 Swanst., 106; Latourette v. Williams, 1 Barb., 9; Neufville v. Thompson, 3 Edw. Ch., 92; McKennon v. Phillips, 6 Whart., 571; Kee v. Vasser, 2 Ired. Ch., 553; Stanwood v. Stanwood, 17 Mass., 57; Phelps v. Phelps, 20 Pick., 556; Adams v. Brackett, 5 Met., 280; Jones v. Abenchain, 10 Gratt., 259; Walter v. Hodge, 2 Swanst., 97; Moore v. Freeman, Bunbury, 205; Lady Arundel v. Phipps, 10 Ves., 146; Shepard v. Shepard, 7 Johns. Ch., 57; 2 Story’s Eq., § 1204. The doctrine is thus stated by the supreme court in Wallingsford v. Allen: “ Agreements between'husband and wife, during coverture, for the transfer from him of property directly to the latter, are undoubtedly void at law. Equity examines with great caution before it will confirm them. But it does sustain them when a clear and satisfactory case is made out, that the property is to be applied to the separate use of the wife. Where the consideration of the transfer is a separate interest of the wife, yielded up by her for the husband’s benefit, or that of their family, or ' which has been appropriated by him to his uses; where the husband is in a situation to make a gift of property to the wife, and distinctly separates it from the mass of his property for her use — either case equity will sustain, though no trustee has been interposed to hold for the wife’s use.”

In this case it appears from the petition of Mrs. Bicknell, verified by her oath, and which comes up to us undisputed, that the mortgaged premises were purchased by her former husband, Silas Sears, “ in his own name, out of and with the funds, money and property received by her from her father, and which remained and was till such purchase her property, and that said Silas Sears held said property in trust for her during his lifetime, after the purchase thereof, until just previous to his death,” when he conveyed the same to her by deed, the effect of which is the point chiefly controverted on this appeal. This is a proceeding in equity to determine the claims of the contending parties for the surplus moneys arising from a sale of tbe premises under a mortgage executed and recorded before tbe conveyance to Mrs. Bicknell, then Mrs. Sears, after satisfaction of that mortgage. Enough has already been said to show that the conveyance from Mr. Sears to Mrs. BicTc-nell, no creditors appearing to impeach it, was valid in equity. Certainly it was executed upon a valuable and meritorious consideration ; E^nd as against the heirs, the appellants here, she was entitled to the whole surplus. But as she does not appeal, that error of the circuit court must remain uncorrected. But as to the mortgage to Lloyd, a question fairly involved in the appeal, it follows from the same view of the equitable rights of the parties, that the court was correct in awarding to him the sum found due upon it. Having an estate in equity, Mrs. Bicknellcould undoubtedly mortgage it; and such mortgage will be sustained as a valid incumbrance by a court of equity.

The order must therefore be affirmed, with costs to be taxed against the appellants and in favor of the defendant Lloyd.-