Arndt v. Harshaw

• Decision Date: 03 November 1881
• Parties: ARNDT v. HARSHAW.
• Court: Wisconsin Supreme Court

53 Wis. 269

10 N.W. 390

ARNDT

v.HARSHAW.

Supreme Court of Wisconsin.

Filed November 3, 1881.

Appeal from county court, Winnebago county.

Replevin against the defendant, the sheriff of Winnebago county, to recover certain personal property seized by him by virtue of an execution issued on a judgment against one Ferdinand Arndt, the husband of the plaintiff. The property so seized consisted of grain and hay grown in 1877 on a farm which the plaintiff claims is her separate estate, and to which she has title. The defendant claims that the farm was purchased, in part at least, with the means of the husband; that she holds the title in fraud of his creditors, and hence that the crops grown thereon are liable to seizure for the debts of the husband. The testimony, and the ruling of the court on the trial, are sufficiently stated in the opinion. The plaintiff recovered judgment for the property claimed, and the defendant has appealed from the judgment.Henry Fitzgibbon and W. B. Felker, for respondent.

G. W. Burnell, for appellant.

LYON, J.

There are numerous alleged errors assigned as grounds for reversing the judgment of the county court, but the view we take of the case renders a specific consideration of many of them quite unnecessary. We think the undisputed evidence shows that in 1869 the plaintiff purchased the farm on which the crops seized by the sheriff were grown, in her own right, of one Murray, who gave her a land contract therefor; that at or about the time of such purchase she paid on the price of the farm $1,000, which was given to her by her father; that she afterwards paid thereon $400, borrowed by her of her father, for which she and her husband gave their note; that the contract price of the farm was $3,500; and that in 1876 Murray conveyed the farm to the plaintiff, and she and her husband executed to him a note, secured by their mortgage on the farm, for $970, that being the unpaid balance of the agreed price. There are some discrepancies in the testimony of the wife as to dates of payment, but none as to the sums paid, or the sources from whence she received the money. She also stated that her husband did not sign the notes and mortgage above mentioned, but it was shown that he did. The judgment upon which the execution issued, under which the sheriff justifies his levy, is in favor of one Earnest Funk, and was recovered in 1875. It is understood that the indebtedness upon which it was recovered was a loan of $238 made in 1868 by Funk to Ferdinand Arndt. It was a controverted question on the trial whether or not the money so loaned by Funk was applied in part payment for the farm. If it was not, the whole amount paid Murray, over and above the sums received by the plaintiff of her father, as before stated, was paid by the plaintiff out of the proceeds and profits of the farm. On this proposition there is no conflict in the testimony.

The question whether the Funk loan was so applied was submitted to the jury as a controlling one in the case. The court instructed the jury, in effect, that if such loan went into the purchase money of the farm, the transaction was fraudulent as to him, and the plaintiff could not recover. The only testimony in the case which tended to show that any money of the plaintiff's husband was applied in payment for the farm is that relating to the disposition of the money which he borrowed of Funk in 1868. The signing of the notes and mortgage with his wife is not significant, for the undisputed evidence is, as already observed, that the loan of $400 was her loan and not his; that the purchase of the farm was made by her in her own right; and that she had separate estate which she applied in payment therefor. Neither is it important that the husband worked for his wife on the farm and in the business of butchering, which she sometimes carried on in the winter, and acted as her agent in the transaction of her business. His employment by her was lawful, and is not a badge or evidence of fraud. Feller v. Adler, 23 Wis. 301;Dayton v. Walsh, 47 Wis. 113. Hence, under the testimony, there was no question of fact to be submitted to the jury as bearing upon the averment of fraud, except the question which was submitted to them as to the use made of the Funk loan; and we think the defendant cannot justly complain that the learned county judge did not give the law correctly in that behalf. If the judge erred, the error was in favor of the defendant, for he held that if such loan was applied towards paying for the farm the plaintiff could not recover.

The jury having negatived the only alleged fact upon which the claim of fraud can be predicated, the judgment for the plaintiff cannot be disturbed unless there was some material error in the rulings of the court which may have affected the verdict in that behalf. It is believed there are but two rulings requiring consideration which could have affected the verdict. One of these related to the rule of evidence, the other to the admission of testimony.

1. The court refused to give several instructions proposed by the defendant, to the effect that the burden was upon the plaintiff to show that the farm was her separate estate, and that she must prove the fact by the clearest evidence and beyond a reasonable doubt, or she could not recover in the action. Also that transactions between husband and wife should be closely scrutinized to see whether they were not intended to cover fraud. The court charged the jury on this subject as follows: “Dealings between the husband and wife in relation to the property, by which the rights of the husband's creditors may be prejudiced, are to be scrutinized closely and carefully, because the marital relation is one which affords facilities and opportunities for fraudulent concealment of property to such an extent that, where the husband and wife deal together, either directly or indirectly, and the property of the husband is in any manner transferred, or the title of it in any manner transferred, to the wife, the transaction, when questioned by any creditor of the husband, is to be scrutinized very closely,...