Sommermeyer v. Schwartz

89 Wis. 66 | Wis. | 1894

NewMAN, J.

The judgment roll Ayas competent eAddence of the plaintiff’s claim against the firm, notwithstanding it failed to show service of a summons. It must be presumed that a summons was duly ser\Ted. Where the record of a superior domestic court is silent upon the subject of the service of the process by which the court acquires jurisdiction of the defendant, it is presumed, in faAmr of the judgment, that laAAfful process was duly served. Ely v. Tallman, 14 Wis. 28; Freem. Judgm. (3d ed.), §§ 12A-132, and cases cited.

The plaintiff’s attachment was prior to the attachment by the appellant. Whether her lien upon the attached property shall be postponed to the lien of the appellant’s attachment depends upon the determination of the question Avhether her claim is to be deemed bona fide, or whether it is fraudulent as against the appellant’s claim. Not only is the appellant’s attachment subsequent to the plaintiff’s attachment, but her claim against the defendant is subsequent to Sommermeyer’s conveyance of his lands to his wife. So the question of priority betAveen these two claimants must depend upon the bona fides of the conveyance by Sommer-meyer to his wife. It is evident that the property conveyed Avas greatly disproportioned to the afieged indebtedness to his Avife. The sum alleged to have been loaned was small. The value of the property conveyed Avas relatively large. Only a part of it was sold, out of which the alleged loans Avere made Avhich are the foundation of the plaintiff’s claim. And these did not comprise all the proceeds of those sales, for the plaintiff had and used a part of such proceeds. So tbe conveyance was intended to be not only a repayment of moneys loaned, but in large part a settlement upon tbe wife. It was of substantially all tbe husband’s property. It was .soon after be bad formed a copartnership for a new enterprise. .It was, in part at least, to provide against tbe contingency of ill success in tbe new enterprise. It was intended .as a provision against just what did happen; for Sommer-meyer testifies, in substance, that bis wife bad lost confidence in bis business ability and judgment, by reason of tbe failure of bis enterprises, and that she wanted him at that time to provide for her and for tbe children. This was to ■secure tbe benefit of tbe property to himself and to bis family. No doubt such a conveyance, made for such a purpose, is void, even as against subsequent creditors. E. S. rsec. 2320. It is well settled that a husband may make a voluntary settlement upon bis wife, not unreasonable in ■amount in vie^ of bis property and circumstances at tbe time, where there is no fraudulent intention in fact, which cannot be impeached by subsequent creditors. Pike v. Mills, 23 Wis. 164. In that case tbe settlement was of tbe homestead and a small tract of land outside, leaving tbe husband worth at least $75,000 above bis debts. Tbe settlement was upheld. But if tbe settlement is unreasonable in amount in view of tbe property and circumstances of tbe husband, or if there is an intention in fact to defraud existing creditors, or creditors whose rights are expected to shortly supervene, or creditors whose rights may and do so supervene, tbe settler purposing to throw tbe hazards of business in which he is about to enga,ge upon others, instead of honestly holding his means subject to the chances of those adverse results to which all business enterprises are liable, the settlement is impeachable by a subsequent creditor. Case v. Phelps, 39 N. Y. 164; Smith v. Vodges, 92 U. S. 183; Fisher v. Lewis, 69 Mo. 631; Black v. Nease, 37 Pa. St. 438.

The evidence very clearly shows that the plaintiff’s claim to tbe fund in court is fraudulent as against tbe appellant’s claim. .As against tbe appellant’s claim, sbe is not entitled to tbe fund. Besides, in a contest between tbe husband’s creditors and tbe wife, transactions between ber and ber husband are to be. closely scrutinized. Breslauer v. Geilfuss, 65 Wis. 377. Nor can tbe plaintiff’s attachment be sustained in part, for so much as involves her husband’s original debt to ber. Sbe has involved that with a clabn which is fraudulent. Tbe good and bad cannot be separated. The fraud corrupts and destroys tbe whole. Fairfield v. Baldwin, 12 Pick. 388.

By the Court.— Tbe judgment of tbe circuit court is reversed, and tbe cause remanded with directions to enter judgment in accordance with this opinion.