81 Wis. 151 | Wis. | 1891
Lead Opinion
This is another of the garnishee actions in the main action of the respondent bank against Merrill & Houston Iron Works, Sereno T. Merrill and 0. F. G. Collins, as set out in the preceding case, ante, p. 142. As the result of the trial of the garnishee issue, the circuit court found and adjudged the deed executed by S. T. Merrill to Jame B. Merrill, his wife, on November 28, 1882, of a triangular piece of land in the city of Beloit, was so made with intent to defraud creditors, and is void, and other
The facts in relation to the Christmas gift on the 25th day of December, 1868, by S. T. Merrill, the father, to his six children, of three of the four notes he then held against Benjamin Field and Israel Williams, are stated in the preceding case. On that same day he transferred and delivered the other of said notes, then amounting to a little over $2,000, principal and interest, to his wife, Jeme B. Merrill, in consideration and payment of about that sum that he owed her for borrowed money and teacher’s wages before they were married, and which constituted a part of her separate estate at the time of their marriage and after-wards. For a part of the same he gave to her his note, which, however, she destroyed, and at the above date the debt was barred by the statute of limitations. It seems that she did not wish to hold his note, or to sue him for the money, which would seem to be perfectly natural to a confiding and sensitive wife. The fact of this indebtedness of S. T. Merrill to his wife at that time depends exclusively upon the testimony of his wife and himself, which was un-contradicted, and there is no good reason for disbelieving or questioning it. Transactions so long ago would not likely be remembered, and could not be stated in their particulars, with the clearness of those more recent. But there can be no well-grounded criticism of their testimony that ought to impeach it or cast any doubt upon it. When the note of Field and Williams was so delivered to Mrs. Merrill by her husband, she put it away in her room, and it was there kept by her. One of the children, Annette Merrill, to whom the father, S. T. Merrill, gave one half of one of said notes on Christmas, 1868, died, and Mr. Merrill gave that interest in said note to his wife.
In 1873, when O. E. Merrill & Co. were incorporated in the name of Merrill & Houston Iron Works, and transferred
These are briefly the facts. The circuit court made very long findings of fact and conclusions of law, which need not be specially noticed. The judgment predicated on the above facts is only important. It .is useless to consider the exceptions to the findings of fact. The judgment of the circuit court is substantially that the said deed of the triangular lot in Beloit is void for fraud against creditors, and that the two notes of Merrill & Houston Iron Vorks, given to her to secure her for the loan of the note of $4,000 to the company, are held by her fraudulently, and that they are void, and liable to be applied to plaintiff’s, demand; and that $1,100 of the securities of the mortgage and trust company she holds in the form of real estate coupon bonds is a part of her separate property, and $1,400 thereof, with accrued interest, is the money of S. T. Merrill, and liable to be applied on plaintiff’s demand.
As a question of fact, it does not appear that either S. T. Merrill or his wife had any intent to defraud his creditors in any of the transactions above mentioned, and no such inference can be drawn from the facts.
1. Mrs. Merrill had from the start a separate estate of at least $2,000, and it consisted of money loaned to her husband and of a debt against him for wages. The learned counsel of the respondent contends that at least a part of that estate, which consisted of the note of S. T. Merrill of $500, should not be considered a part of the consideration of the purchase of the note on December 25, 1868, because the note was barred by the statute of limitations, and was burned up. The statute of limitations does not run against a wife, and presumption of payment by lapse of time does
2. But the respondent’s claim is long subsequent, and it cannot question the fact of the sale, and there could not have been any attempt to defraud creditors at that time certainly, for there could have been no motive or object. The circuit court doés not find fraud in that transaction, but holds it void upon the theory that it did not take place, or that it was a sham and not real.
3. It is said S. T. Merrill dealt in and managed all these stocks and notes as his own, and not as belonging to his wife. If he did do so, it will not affect her title. But he acted as her agent in what he did, and so they understood as between themselves. They were husband and wife, and had the right to keep such a “ family secret,” if it was one.
During all these transactions S. T. Merrill was a man of wealth, and not at all embarrassed by his debts, and was abundantly solvent; and at the time of the sale of the. 2.18 acres of ground in Beloit by S. T. Merrill to his wife he owned assets of the value of between $60,000 and $10,000, and was not personally in debt to any large amount. It seems that S. T. Merrill was regarded of such good financial credit that it must have been important as security to obtain his indorsement on the note in suit as late as October. 1883, more than a year afterwards. The judgment in this case has taken away half of the separate estate that
By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded with direction to dismiss the garnishee proceedings against Jame B. Merrill.
Dissenting Opinion
I dissent from the opinion of the majority of the court in this case, because, after a careful examination of the evidence, I do not think there is that clear and satisfactory preponderance of evidence against the findings of fact of the circuit judge which justifies this court in reversing such findings.