Shoemaker v. Katz
43 N.W. 151
Wis.
1889
Check Treatment
Lyon, J.

The contention of counsel for plaintiff is that if the judgments of William Hast, Esther Harris, and Hast & Karger are fraudulent and were assigned to Katz in trust for the use of Leopold Harris or his firm, this invalidates the agreement between. Harris and the garnishee, Katz, and renders the latter liable as a garnishee in this action; and further, that the evidence tends -to prove that such judgments are fraudulent as against the creditors of L. Harris & Sons, and were so ássigned, and hence' that the question whether the same are fraudulent and were so assigned should have been submitted to the jury.

*378Conceding, for the purposes of the case, that these judgments were fraudulent and were so assigned, we are of the opinion that the position of counsel cannot be sustained. There is no evidence in the case tending to show that Katz had any notice or knowledge that such judgments were fraudulent. In the absence thereof, he had the right to deal with them as valid, subsisting judgments, which, by the levy of the executions, had become lawful liens upon the stock of goods he proposed to purchase and did purchase. Moreover, there is nothing in the evidence to impeach the fairness, regularity, or validity of the execution sale under which Katz purchased the stock. There can be no doubt that, had there been no agreement with Leopold Harris, Katz would have taken the absolute title to the stock under his purchase, discharged of anj?- possible claim thereto by any other creditor, and he might afterwards have made just such an agreement with Harris as he did make, without impairing or endangering his title. Being the absolute owner of the goods, he might lawfully do with them as he pleased, and, if he chose to donate them, or an interest in them, to Harris or any other person, or declare a trust in favor of any one therein, or make any improvident contract in respect to them, no person has any right to object. No good reason is perceived why the fact that he made such agreement before he purchased conditional upon his becoming the purchaser at the execution sale, should restrict or affect his rights, especially when he was ignorant of any contemplated fraud on the part of others.

Had any of the stock remained undisposed of after Katz had reimbursed himself out of the proceeds of the portion sold for his advances, commissions, expenses, etc., according to his agreement with Harris, if the challenged judgments are fraudulent • and void as to the creditors of L. Harris & Sons, probably the creditors could reach such residue in the hands of Katz or any other person. But *379there was no residue, and the question suggested is not,in the case. If, as counsel claim, such residue was to be turned over to Leopold Harris or his firm, still, under the circumstances of the case, Katz was guilty of no fraud when he agreed to do so.

In every view'of the case it is barren of any proof of fraud on the part of Katz, and the court was fully justified in taking the question of fraud from the jury, and directing a verdict for the garnishee.

Some exceptions to the exclusion of testimony were taken by the plaintiff. The view we' have taken of the case renders these quite immaterial, and they will not be determined. ¡,

By the Court.— The judgment of the superior court is affirmed.