54 Wis. 248 | Wis. | 1882
Two cases of the same title were submitted together, as the only difference between them is that in one the debt was not due, and in the other it was. These appeals being from judgments dismissing attachments upon the trial by the court of the traverso of the affidavits, this court must necessarily review the evidence, and therefore the exceptions founded upon the admission of improper evidence will be disregarded. Snyder v. Wright, 13 Wis., 688; Sanford v. McCreedy, 28 Wis., 103; Stewart v. Stewart, 41 Wis., 624; Norris v. Persons, 49 Wis., 101.
The only question apparent upon the record is one of fact, and that practically confined to the mortgage given by the defendant to Landauer & Co. on the 21st day of April, 1881. Was that mortgage given by the defendant with intent to defraud his creditors?
It must be conceded that this mortgage was given under circumstances which might well excite suspicion, and there are some facts connected with it which, in themselves, are indications and badges of fraud, but which are not conclusive evidence of fraud, and, when considered in the light of all the evidence in the case, may be insufficient to impeach the Iona fides of the transaction. In passing upon this question this court must have in mind two well-settled principles: first, that the burden of proving that this mortgage was given with intent to defraud creditors is upon the plaintiff, and to establish the fact requires clear and satisfactory evidence; secondly, that to justify this court in reversing the finding of the circuit judge upon such an issue, the reported evidence must be clearly preponderating against it. Davidson v. Hackett, 49 Wis., 186.
The learned and able circuit judge who tried this issue, had
There were other facts which, perhaps, cast suspicion upon the transaction, which we have not noticed. As against these indications of bad faith,.and in explanation of them, it was clearly apparent that the defendant was an unskillful and careless business man, and probably did not know fully (or think of at the time) the full extent of his indebtedness, and was apparently hopeful, and unreasonably so perhaps, that if he could gain some time and have indulgence he would be able to pay his debts. He gave the mortgage with great reluctance,
The defendant testified very readily as to the manner, in which he had treated the stock after giving the mortgage, and to other facts bearing against its validity, and in this ax in some other disclosures, such as his motive “ to gain time,” etc., it is apparent that he was an inexperienced, careless, yet frank and honest man.
This brief reference to the main points of the evidence is sufficient to show that the circuit court properly found that the mortgage was not given with intent to defraud creditors, or at least to show that the evidence does not clearly preponderate against such finding. The law in respect to fraud in sales and mortgages is so well settled and so unquestionable that it would be supererogation, and an exhibition of legal pedantry, to cite authorities.
In respect to the constitutional and jurisdictional questions
By the Court.— The judgment of the circuit court is affirmed.