133 Wis. 431 | Wis. | 1907
"While the findings as to Schallcrt’s fraudulent intent in procuring conveyance of the described real estate direct to the appellant, Bienfang, and her participation, that the entire consideration therefor was paid by the defendant Schallert, and that said conveyance was made and taken in secret trust for said Schallert, are vigorously assailed, we find, upon examination of the evidence, no clear preponderance against any of them, and therefore must proceed to consider the case upon the assumption that such facts exist. We may say, however, that we find no evidence whatever of any transfer to appellant, Bienfang, of the small amount of personal property mentioned in the land contract, and must therefore conclude that the finding that such transfer was made is unsupported.
The conclusion that the transaction between Bunting, Schallert, and Bienfang falls within sec. 2078, Stats. (1898), is not averted by the fact that before the conveyance Schallert had obtained the right to purchase in his own name by written agreement. It is probably true that, under an ordinary
Having concluded that the judgment is erroneous and not supported by the findings or by the facts proved, we are confronted with the further question whether, within the pleadings and proofs, any relief can be granted. The complaint, while expressly praying that the conveyance be set aside and the plaintiff’s judgment decreed to be a lien upon the property, contains allegation of all the facts necessary to establish a trust in the appellant and in favor of the plaintiff, together with all other creditors existing on March 10, 1905, and declares- that the suit is brought on behalf of the plaintiff and other creditors, although it attempts to limit the benefit of the suit to other judgment creditors. The complaint also, in addition to the prayer above mentioned, does ask for such •other and further relief as may be just and equitable. It also sufficiently shows inadequacy of any remedy at law by alleging issue and nulla bona return of execution under plaintiff’s judgment. That is prima facie proof that Schal-lert has no property within reach of execution, and the burden of proof is on defendant to disclose any such property. Gilbert v. Stockman, 81 Wis. 602, 51 N. W. 1076, 52 N. W. 1045; Zweig v. Horicon I. & Mfg. Co. 17 Wis. 362; Level L. Co. v. Sivyer, 112 Wis. 442, 453, 88 N. W. 317; Jones
There must therefore be proceedings to ascertain who those creditors are, based upon an adequately published notice limiting a reasonable time within which they may establish the amount of their claims, and, as a condition of being allowed to share in the fruits of the litigation, shall each pay to the plaintiff his proportionate share of the expenses which it has reasonably incurred in uncovering and realizing this fund. When the entire amount of such debts is ascertained, the appellant, by virtue of the statute, has the right to perform her trust by paying them, and upon default in so doing the court should provide for the sequestration of the real estate conveyed to her and sale thereof either by a receiver or some other proper method, and the apportionment of the amount so realized amongst the creditors who have become parties to the suit in the manner above
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.