Zimmerman v. Bannon, 101 Wis. 407

Zimmerman v. Bannon

101 Wis. 407 | Wis. | 1898

Babdbbn, J.

We are urged to reverse this judgment because the findings are not supported by the evidence. Uo substantial end will be gained by a review of all the facts tending to support the conclusion reached by the trial judge. A reference to some of the leading facts must suffice. Patrick inherited the property in question from his parents. There were six children. The father died some thirty-six *410years ago. The property was held, in common, and nsed for the support of the family. The mother died in 1890. Patrick, Julia, and one or two of the other children lived on the farm, and continued to use it the same as they had done before the mother died. Some time in the spring of 1890, Julia talked of going to Dakota. At this time it is claimed that there was an agreement made between. Patrick and JicUa which may be best given in the language of the witness Patrióle: “ Made my share of the farm over to my sister about a week after mother died. I did not and never have executed any writings to my sister making the farm over to her; only this mortgage I gave her. That agreement was made in the spring of 1890. She was to stop there, and keep house for John and me and any of the rest of them that wanted to come home, and I would give her my share of the farm; that is the agreement just as it was made.” The parties- remained at the farm, and nothing was done towards carrying out this agreement on the part of Patriólo until the execution of the mortgage mentioned. In the spring of 1891, -suit was commenced against Patricio, in which large damages were claimed. During the pendency of the suit, he stated to several persons that the plaintiff would never get any of his property, and that he would put it out of the way. After the case had been noticed for trial, he executed and delivered the mortgage to Julia. It is admitted that at the time of the alleged agreement in 1890, nothing was said as to how long Julia was to stay on the farm and no value was placed on her services. It appears affirmatively that the matter was never talked of afterwards between them. There is nothing to show that Patricio was under any greater obligation to pay Julia for her services than the other two children who have lived there during a greater part of the time since 1890. The circumstances of the giving of the mortgage were in the highest degree suspicious. The law-suit was being pressed for trial. Patildo and Julia drove *411from the farm to Deerfield together, the former being on his way to Madison. "While at Deerfield, he went to an attorney’s office, had the mortgage drawn up for Sfj'TOO, executed it, took the note to Julia and the mortgage to Madison, and .had it recorded. This was done without any talk or consultation with Julia on the subject. There had been no demand on her part that the alleged agreement of 1890 should be carried out; no consultation as to the amount or value of her wages; no agreement that a mortgage should be given for her security in place of a deed. In fact, it seems to have been a spontaneous outburst of brotherly generosity. The defendants claim that it was but the resurrection of the ancient promise. It seems to have come at a time quite -opportune to the interest of the Bamm,on family.

There are many other minor facts and circumstances which have a bearing upon the question at issue, but which need not be stated. They tend largely to impeach the transaction, and throw doubt and suspicion upon it. There can be no doubt but that Julia had full knowledge of the circumstances ■surrounding Patrióle. It is admitted that the lawsuit was somewhat discussed at home. The situation must not be judged from the mere statement of witnesses. Yery few cases can be found in the books where the fraudulent designs •of parties have been defeated'that could not have been decided the other way if the court had depended alone upon the statements ,of interested parties. Fraud seldom works in daylight. Its ways are hidden and secret. It is usually masked when it appears in the sunlight. It travels incognito. Its outward form is usually honest and virtuous. It is always plausible, and many times deceptive. Because this is so, it is the duty of courts to use the judicial searchlight with great care and prudence. The identity of this legal bogy is frequently revealed by its environment. Facts and circumstances, small and inconsiderable in themselves, often lead to unerring conclusions. The story of the defendants *412sounds plausible, but, when tested by the surrounding circumstances, it becomes improbable. Admitted facts are sometimes just as potential -to impeach a witness as positive testimony. A court is not bound to accept a statement as true because there is no direct, testimony contradicting it. It may be inherently improbable, or it may be impeached by the attendant circumstances. Courts are never bound to accept the statement of a witness which is against all reasonable probability. Roth v. S. E. Barrett Mfg. Co. 96 Wis. 615; Groesbeck v. C., M. & St. P. R. Co. 93 Wis. 505. The trial court seems to have reached a conclusion amply supported by the facts in the case, and we cannot disturb it. Sec. 2320,, R. S. 1878, says that every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, made with intent to hinder, delay, or defraud creditors of their lawful actions, debts, or demands, shall be void. A conveyance made with intent to delay a subsequent creditor comes within the statute. Hoffman v. Junk, 51 Wis. 613.

The defendant asked the court to find that Patrick made the agreement to convey to Julia as testified to by him, and that she performed services under such agreement, of the reasonable value of $700. These findings were refused, as being unsupported by the proof and immaterial. Whatever may have been the proper reason for his refusal, these findings became immaterial in view of the findings made. The defendant Julia having participated in Patrick's fraudulent design, and having taken her mortgage with knowledge of his purpose and in furtherance of it, the fact that Patrióle may have justly owed her the full sum of $700 and gave the mortgage as security therefor, did not purge the transaction of its taint. It is not the honesty of the debt secured by, but the purpose of, the conveyance, to which the statute has reference. The mortgage in suit is none the less void though given to secure an honest debt, if given and received with intention to hinder and delay creditors. David v. Birchard, 53 Wis. 492; *413Sweetser v. Silber, 87 Wis. 102; Bleiler v. Moore, 94 Wis. 385. We see no reason for disturbing this judgment.

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