Allen v. Perry

• Decision Date: 21 November 1882
• Citation: 56 Wis. 178,14 N.W. 3
• Court: Wisconsin Supreme Court
• Parties: ALLEN v. PERRY.

56 Wis. 178

14 N.W. 3

ALLEN

v.PERRY.

Supreme Court of Wisconsin.

Filed November 21, 1882.

Appeal from circuit court, Sauk county.

Wm. Brown, for appellant, Lilah Allen.

A. W. Perry and R. P. Perry, for respondent, O. H. Perry.

TAYLOR, J.

This is an action of replevin to recover the possession of a span of horses, harness, and wagon claimed to be owned by the plaintiff, and which had been taken upon a writ of attachment by the defendant in an action against the plaintiff's husband. The writ of attachment was issued in an action in favor of a creditor of the husband upon a claim which was contracted previous to the time when the plaintiff alleges she obtained the property and money of her husband, with which she claims to have purchased the greater part of the property in question. The evidence tends at least to show that the money which purchased the two horses and the harness came to the plaintiff from her husband, and was a part of the price received for his homestead on a sale thereof made by him; and that the money was given to her, at the time the deed was executed, as a consideration for consenting to such sale of the homestead and signing the conveyance thereof. The wagon was claimed to have been acquired by the wife in exchange for a horse her husband gave to her previous to their marriage. The evidence also shows conclusively that at the time the property was attached by the defendant the plaintiff and her husband were residents of this state; that he was a farmer, and neither he nor the plaintiff had or owned any horses, harness, or wagon other than those seized by the defendant.

The claim of the defendant on the trial was that the property in fact belonged to the plaintiff's husband, and if there had been any horse given to the plaintiff by her husband before their marriage, or if any of the money received on the sale of the homestead had been received by the wife, either from her husband or from the purchaser of such homestead, that such gift of the horse and the money was fraudulent and void as to the husband's creditors. The evidence showed that the attaching creditor was such creditor at the time of the sale of the homestead, but not at the time of the alleged gift of the horse, which was finally traded for the wagon in question in this action. We deem it unnecessary to give any detailed statement of the evidence given on the trial, as we think the judgment must be reversed, for the reason that the charge of the learned circuit judge did not properly submit the question raised by the evidence to the jury.

The counsel for the plaintiff requested the judge to give the jury the following instructions: “ First. This property in this case being exempt, as it appears it was by the testimony in this case, when Charles Allen the husband of this plaintiff, was the owner, he had the right to donate the property or sell it to his wife; and, it being exempt, it would not be liable to seizure and sale on execution against Charles Allen, the husband of the plaintiff. Second. This property being exempt when the husband of the plaintiff conveyed or gave it to his wife, the plaintiff, it cannot be held fraudulent as to the husband's creditors, for the reason that, being exempt, it was as much beyond their reach before the gift as it was after the gift. Third. A husband may, either with or without the intervention of a trustee, enter into a contract with his wife for a valuable consideration, and a settlement made in pursuance of it will be valid against previous as well as subsequent creditors. Fourth. The relinquishment of a homestead, or the release of a contingent right of dower, is a valuable consideration for the receiving or paying of money, as was done in this case.”

The court refused to give the instructions asked, upon the ground, as is shown by the bill of exceptions, that by a rule of the court the instructions were not requested in time. These instructions asked, although not perhaps presented to the court within the time prescribed by its rules, must necessarily have called the attention of the court to the fact that the plaintiff insisted that the question, whether the property in controversy, if the property of the husband at the time it was attached, was exempt from attachment, and that the homestead at the time of the sale and when the wife claims to have received a part of the proceeds of such sale as her own property was also exempt from the claims of her husband's creditors, had an important bearing upon the plaintiff's rights in this action, and the learned circuit judge was therefore bound to submit to the jury in his charge the law applicable to the case as made by the plaintiff in her evidence upon these points. These questions the learned judge in his general charge wholly ignored. The following is the whole of the general charge, except the statement as to what the parties claim, and directions as to the verdict it would be proper for the jury to render in the case:

“ First. In regard to all the property except the wagon, she claims that sometime before this transaction, but it is claimed that it was while the debt upon which the attachment was issued existed, the husband desired to sell the homestead of the parties upon which they resided; that she refused to sign the deed unless he would make over to her one-third of the money derived from the sale; that he did so, and that all the property of which I am now speaking, which includes it all except the wagon, was purchased with that money, or that it was obtained by trading or exchanging property for the property in question, which was purchased with that money. Now, it is not very material that you should understand what the rights of a married woman in a homestead are for the purpose of considering the question that will be submitted to you, but I will state in a general way what I understand her rights to be in the homestead. The husband cannot sell or dispose of it during the life of both, so long as it remains a homestead, without her signature; in fact, can pass no title whatever. If she survives him, and they have no issue, she inherits the property absolutely; it goes to her and her heirs, as I understand it. If there is issue, she retains the use of it during widowhood; if the widowhood continued, during her life; if not, up to the time that she marries; this being her right in the homestead. She claims that she refused to sign the deed unless her husband would settle upon her one-third of the proceeds, and that was a reasonable settlement in view of her rights in the homestead. I charge you, as a matter of law, that a relinquishment in good faith, and as a bona fide transaction to secure for herself the money received upon such consideration as a settlement post-nuptial, or after the marriage, is a valid consideration, if it is made in good faith and not colorable, for the purpose of keeping the property that may be afterwards obtained with the money from the hands of creditors. This is her claim in regard to the property which I have just been speaking of, and it is a question of fact for you to determine, from all the facts and circumstances proven, whether the claim is well founded, and whether such a transaction was bona fide and in good faith, and not merely colorable, for the purpose of keeping property afterwards acquired by virtue of the money from creditors. In relation to such settlements I will state further, and I quote from approved authority upon such subjects (authority which I approve) as follows: ‘The question in every case is whether the settlement is a bona fide transaction, or whether it is a trick and contrivance participated in by both parties to defraud creditors, and that is a question, of course, for the jury;’ and further upon the subject: ‘Such settlements are, however, watched with considerable jealousy on account of the relative situation of the parties and the convenient cover they afford a debtor to protect his property and impose upon his creditors.’

There might be, gentlemen, and I refer to it here because it is the only way in which it will appear, some further question in relation to the harness in controversy, as it was purchased directly from the husband with money which the plaintiff claims she thus derived; but counsel for defendant makes no claim but that it should be treated like the other property, and not...