Van Osdell v. Champion, 89 Wis. 661

Van Osdell v. Champion

89 Wis. 661 | Wis. | 1895

PiNNEr, J.

1. It is laid down as a general rule that “ a •condition, annexed to a conveyance in fee or by devise, that the purchaser or devisee should not alien, is unlawful and void. . . . If the grant be upon the condition that the grantee shall not commit waste, or not take the profits, or his wife not have her dower, or the husband his curtesy, the condition is repugnant and void, for these rights are inseparable from the estate in fee.” “ Conditions are not sustained when they are repugnant to the estate granted, or infringe upon the essential enjoyment and independent rights of property, and tend manifestly to public inconvenience.” 4 Kent, Comm. *131; 2 Redf. Wills, 287, 290. But it has been held that land may be conveyed to a married woman so as to exclude her husband upon her death from becoming tenant of the premises by the curtesy. Haight v. Hall, 74 Wis. 152. The-authorities are very generally agreed that property cannot be conveyed, devised, or bequeathed with a restriction' against it or any portion of it going to assignees in bankruptcy or in any form to creditors, although a grant may be made which shall be determinable by way of eesser, or by limitation of the estate over to another upon the occurrence of a certain event, such as insolvency, bankruptcy, or the occurrence of any other act or event arising or growing out of the conduct or neglect of the grantee or devisee. The bounty of a grantor or testator may, however, be secured to another by means of a trust, a “ spendthrift’s,” as it is sometimes called; so that the periodical income of the estate cannot be anticipated by the eestwi gue trust, but may be-paid to him from time to time, beyond the power of creditors to intercept or reach it. Many such cases are collated and cited by appellants’ counsel, some of which are referred *666to in Nichols v. Eaton, 91 U. S. 717, 727; and the whole subject is fully considered in Broadway Nat. Bank v. Adams, 133 Mass. 170, and Foster v. Foster, 133 Mass. 179.

But these cases are all clearly distinguishable from the present, by reason of the absolute and unlimited condition contained in the residuary clause of Mrs. Champion’s will, under which her son, Charles B. Champion, obtained his title.We have not been referred to, nor are we aware of, any authority that would warrant us in upholding, as against the creditors of Charles B. Champion, the provision by which the devise to him was upon the express condition that the premises should “ in no wise ever be subject to any debt, liability, execution, or attachment against him, existing at this time (xr at cmy time hereafter.” The condition is general, and is not limited to future-events. It was intended to affect existing as well as future writs or judgments, and is unlimited in point of time, and ivas manifestly an attempt to secure the, estate in his hands as a devisee in fee against the claims of creditors incident to such an ownership by the laws of tyery civilized state; and to sustain such a condition would jbe productive of great inconvenience to creditors and those (dealing with the grantee or devisee upon the faith of apparent absolute ownership, and would be contrary to sound /public policy. To give effect to such a condition would be, jas to such transaction, to permit parties to abrogate and annul the law of the state by a mere private arrangement; and the contention of the appellants’ counsel goes to the extent of claiming that a man may thus be the full legal, as well as the equitable, owner of property thus devised, deal with it as he pleases, and that it shall not be liable for his debts. This would be to destroy, in a very great degree, ¡all faith in the apparent ownership of property, and countenance secret exemptions from liability of a debtor’s property for his debts, and would tend to mischievous and fraudulent residts.

*667In Blackstone Bank v. Davis, 21 Pick. 42, it was held that a provision, in a devise of land, that the land should not “ be .subject or liable to conveyance or attachment,” was void, because contrary to law, which makes a man’s property liable for the payment of his debts. In that case, as in this, the condition was unlimited in point of time; and it was declared to be “an attempt to impose a restraint upon property which the law would not allow.” In Bramhall v. Ferris, 14 N. Y. 44, while sustaining the provision there in question, it was said that “ any attempt to make the interest of the •beneficiary inalienable, or to withdraw it from the claims of creditors, would have been nugatory, . . . would clearly be repugnant to the estate in fact devised and bequeathed, and would be ineffectual for that reason as well as upon the policy of the law.” This view is sustained in Hahn v. Hutchinson, 159 Pa. St. 133, 138-141; Stansbury v. Hubner, 73 Md. 229; Steib v. Whitehead, 111 Ill. 251; McCormick H. M. Co. v. Gates, 75 Iowa, 343; Ehrisman v. Sener, 162 Pa. St. 577. "We hold, therefore, that the provision in the will of Mrs. Champion, relied ' on to protect the property. devised to Charles B. Champion from the claims of his judgment creditors, is void.

2. By sec. 3128, R. S., provision is made by which application may be made to the court by any creditor being a party to an action for partition and having a lien upon any undivided share or interest in the premises sold, to order the amount due such creditor to be paid, and for a hearing upon notice to the other party; and by sec. 3129 the court is “ to hear the proofs and allegations of the parties, and if any question of fact shall arise which, in the opinion of the court, cannot be determined without a trial by jury, the court shall direct an issue to be made which shall be tried' as in other cases, and the costs of such trial shall be paid' by the party failing, which payment shall be enforced as in other cases.” It is objected by the appellant that the power *668to award, costs against tlie party failing extends only to cases where the issue is tried by a jury; and where, as in this case, the issue was tried by the court, the power to award costs does not exist. By sec. 2883, R. S., judgment may be given in an action “ determining the ultimate rights of the parties on each side, as between themselves; ” and this would include the right to award costs as between them. We think that, by a fair construction of the statute, the costs, if the issues are tried by the court, may be awarded in like manner as if there had been a trial by jury. Both the action for partition and this proceeding in it being of an equitable character, attorney’s fees were rightly taxed as. between the parties to these issues as in equitable actions.

We find no error in the judgment appealed from.

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