Bank of Commerce v. Nw. Nat. Bank

• Decision Date: 01 May 1896
• Citation: 93 Wis. 241,67 N.W. 423
• Parties: BANK OF COMMERCE v. NORTHWESTERN NAT. BANK. BANK OF COMMERCE v. FOWLER.
• Court: Wisconsin Supreme Court

93 Wis. 241

67 N.W. 423

BANK OF COMMERCE

v.NORTHWESTERN NAT. BANK.

BANK OF COMMERCE

v.FOWLER.

Supreme Court of Wisconsin.

May 1, 1896.

Appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Garnishee proceedings by the Bank of Commerce against the Northwestern National Bank and Homer T. Fowler, garnishees of W. E. Moran. From the judgments, plaintiff and garnishee Fowler appeal. Affirmed.

A judgment having been rendered in favor of the plaintiff, the Bank of Commerce, against W. E. Moran, Louis G. Moran, and George Taylor, for $2,214.40, and execution having been issued thereon, a garnishee action was commenced in which Homer T. Fowler and the Northwestern National Bank were summoned as garnishees of said W. E. Moran, on the ground that they were indebted to or had property belonging to him. The garnishees severally answered, denying such indebtedness, etc., and the plaintiff elected to take issue thereon. Upon trial, the court found, among other things, that, November 15, 1893, W. E. Moran was the owner of a pile driver, scow, and some tools belonging therewith, subject to a mortgage to A. G. Brown, and on that date he caused the same to be conveyed to the garnishee Homer T. Fowler, without any consideration other than the payment of $300 to take up said mortgage to said Brown, and with intent, participated in by the said Fowler, to hinder and delay the creditors of the said W. E. Moran; that said Fowler had the said property in his possession when served with the garnishee process, and thereafter sold it for $900, and that he could not, by reason of such fraud or collusion, be protected on account of the $300 paid, but was liable, as garnishee, for the full amount for which he sold the property, with interest from the time of said sale; that said W. E. Moran, October 26, 1893, by deed in which his wife joined, conveyed their homestead to said Fowler, then the president of the Northwestern National Bank, subject to a mortgage thereon of $2,500, for the purpose of securing the sum of $996.09 then due the said Northwestern National Bank, garnishee, from said Moran, and $400 then advanced to him by the bank, making in all the sum of $1,396.09, and the wife of said Moran joined in the conveyance in consideration of an agreement whereby there was secured to her any surplus that might arise from the sale of the property, over and above said mortgage and the amount due to the bank. Judgment was given in favor of the plaintiff against said Fowler for $900 and interest, with costs, from which he appealed, and in favor of said Northwestern National Bank for its costs; the court holding that the property conveyed to Fowler was exempt, and it could not be reached to satisfy the plaintiff's judgment, from which part of the judgment the plaintiff appealed.John Brennan, for plaintiff.

Ross, Dwyer & Hanitch, for defendants.

PINNEY, J. (after stating the facts).

1. The case wholly fails to show any ground upon which the plaintiff could have any relief in respect to the conveyance to Fowler, by the judgment debtor, W. E. Moran, and his wife, of their homestead, which they occupied at the time as such. The evidence shows that there was secured to Mrs. Moran, by a contemporaneous written agreement from Fowler, an option to become the purchaser of the premises in case he should offer to sell the same, and also, in case he should make a sale, that the surplus, after the payment of the $2,500 mortgage and the indebtedness of $1,396.09 to the bank, should belong to her; but, as the property was exempt as a homestead, it is...