Hooser v. Hunt

• Decision Date: 12 January 1886
• Citation: 65 Wis. 71,26 N.W. 442
• Parties: HOOSER v. HUNT AND OTHERS.
• Court: Wisconsin Supreme Court

65 Wis. 71

26 N.W. 442

HOOSER

v.HUNT AND OTHERS.

Supreme Court of Wisconsin.

Filed January 12, 1886.

Appeal from circuit court, Grant county.A. W. & W. E. Bell and Orton & Osborne, for respondent.

Bushnell & Watkins, for appellants.

COLE, C. J.

The plaintiff claims title to the land in controversy by virtue of a sheriff's deed. That deed was executed to him upon an execution sale made on a judgment in his favor against William J. Pennybacker. The judgment was docketed September 26, 1879, the execution issued and the land sold July 26, 1880. The certificate of sale was filed in the register's office, August 5, 1880, and, there being no redemption, the sheriff executed a deed to the plaintiff in due form, February 18, 1882. It is an admitted fact that the title to the land was in William J. Pennybacker February 26, 1878. On that day Pennybacker and wife conveyed the land to one B. F. Salzman for the nominal consideration of $2,500. This deed was not delivered to Salzman until after it was recorded, and, within a week or two after Salzman received it, he and his wife executed a conveyance of the land to Mary C. Pennybacker, the wife of W. J. This deed bears date September 26, 1878, and was recorded October 2, 1878. The consideration stated in the deed was $2,500, but the proof is conclusive that no consideration whatever was paid by Salzman, or received by him from any one, for either of these conveyances. September 28, 1880, Mary C. Pennybacker conveyed the land to the defendant Hunt. This deed was recorded September 30, 1880, and October 8, 1880, another deed was executed by her to Hunt to correct a mistake in the former deed. Hunt paid $800 in cash, and gave his notes and a mortgage on the land due in 10 years for the balance of the consideration. Now it is claimed by the plaintiff that the conveyances from Pennybacker and wife to Salzman, and from Salzman to the wife of Pennybacker, were fraudulent as to Pennybacker's creditors, and that Hunt, when he purchased, had notice of the fraud rendering void the title of his grantor. There was considerable testimony given on the trial pro and con on these questions. The learned circuit court, among other thing, charged that, as against the plaintiff, (who was a creditor of her husbandat the time the deeds from Pennybacker and wife to Salzman, and from the latter to Mrs. Pennybacker, were made,) these conveyances were void, and conveyed to Mrs. Pennybacker no title to the land; that if she were still the owner of the land, and a defendant in the case, the plaintiff would be entitled to recover the possession from her. This charge was excepted to, and the exception is relied upon here for a reversal of the judgment.

The defendants' counsel insists that the court erred in holding, as a matter of law, that these conveyances were void; but that the question as to their fraudulent character should have been submitted to the jury upon all the evidence. We think this position is correct. The statute declares that the question of fraudulent intent in all cases arising under it shall be deemed a question of fact, and not one of law, and that no conveyance shall be adjudged fraudulent as against creditors solely on the ground that it was not founded on a valuable consideration. Section 2323; Hyde v. Chapman, 33 Wis. 391;Barkow v. Sanger, 47 Wis. 500;S. C. 3 N. W. Rep. 16. In the latter case, Mr. Justice TAYLOR, by way of query, suggests whether it is necessary to submit the question of fraudulent intent to a jury as a fact where the evidence upon the point is so conclusive and overwhelming as to such fraudulent intent as would justify the court in directing the jury to find such fact; but the policy of the statute clearly is to have the question submitted as one of fact, and not decided as a matter of law. Whether a mere formal submission is necessary, where the evidence is undisputed and decisive as to the fraudulent intent, we shall not attempt to decide, because such is not the case before us. The making of these conveyances may have been an expedient resorted to for the purpose of vesting the title to the land in Mrs. Pennybacker in order to place it beyond the reach of Pennybacker's creditors. Such an inference a jury might make from all the facts and circumstances. It is claimed by plaintiff's counsel that Pennybacker was insolvent when they were executed, or had not sufficient property to pay his debts, aside from this land. This fact is disputed, but the proof shows that he was largely indebted at the time considering his pecuniary resources. It is also said that the conveyances were voluntary; that Mrs. Pennybacker in fact paid no consideration for the land. But this is denied by her, and she says that she had money in the Platteville house and lot; that her husband, wishing to borrow some money on that property, she consented to give up her interest in it in consideration that this land should be conveyed to her. She does not claim, however, to have had more than $200 in the Platteville property, which is much less than the value of the land. The fact that the Platteville property was occupied as a homestead, it is said, had its weight in inducing these conveyances to be made. But all these matters were proper for the jury to consider, in connection with the other facts bearing upon the question of fraudulent intent. It seems to us it was error for the court to hold, as a matter of law, that they were made to hinder and defraud the creditors of Pennybacker, and were therefore void. This is the effect of the charge, which goes upon the theory that both Pennybacker and wife participated in the fraud.

But plaintiff's counsel further contend that the conveyance to Mrs. Pennybacker was presumptively void, and that this presumption could only be overcome by showing, by clear and satisfactory evidence, that the purchase by her was for...