Blackburn v. Lake Shore Traffic Co.

• Decision Date: 15 May 1895
• Citation: 63 N.W. 289,90 Wis. 362
• Parties: BLACKBURN v. LAKE SHORE TRAFFIC CO.
• Court: Wisconsin Supreme Court

90 Wis. 362

63 N.W. 289

BLACKBURN

v.LAKE SHORE TRAFFIC CO.

Supreme Court of Wisconsin.

May 15, 1895.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Action by James Blackburn against the Lake Shore Traffic Company to remove an alleged cloud upon the title to plaintiff's homestead. The property was originally taken in the name of the plaintiff's minor son, the former paying the consideration therefor, and, while it so remained, a judgment was obtained by defendant against plaintiff, and subsequently the property was sold on execution to defendant to satisfy the judgment; hence this action. Defendant contends that there was an abandonment; also that under Rev. St. § 2992, which provides that land held by one in trust for the use of another shall be liable to debts, judgments, executions, etc., against the person to whose use they are holden, the son was a trustee for the father, and hence the judgment is a lien on the property. Rev. St. §§ 2077, 2078, provide that a grant to one person, when the consideration is paid by another, shall be presumed fraudulent, as against the creditors of the latter, and, if a fraudulent intent be not disproved, a trust shall result in favor of such creditors. There was a judgment for plaintiff, from which the defendant appeals. Reversed.

Action to remove a cloud on title. The complaint alleged ownership in the plaintiff since November 2, 1886, of lot 8, in block 6, original plat of the village of Hurley, Ashland county, and that it is and has been since said 2d of November the plaintiff's homestead; that the defendant obtained a judgment against the plaintiff, November 10, 1885, for $20,036.45 and costs, and docketed a transcript thereof in Ashland county, November 12, 1885; that thereafter execution was issued on said judgment, and the said lot sold to the defendant by the sheriff upon such execution; and that the defendant sets up a claim to said lot under such sale. The answer admits the legal title of the plaintiff in the lot, but denies that the same is or ever has been the plaintiff's homestead, and justifies its claim thereto under its judgment and execution sale. It appeared upon the trial that in November, 1884, the property in question was a vacant lot, and that on the 3d of said month it was deeded by the Northern Chief Iron Company to R. D. Blackburn, an 18 year old son of the plaintiff, for the expressed consideration of $75. The plaintiff testified that he bought the lot for his son; that his son paid the purchase money, “or, probably, I paid it for him; he was paying $10 on the lot, as he could spare it.” In April and May, 1886, the plaintiff built a 14-room double house on the lot, with lumber bought of Hoxie & Mellor, and on the 14th of April, 1886, R. D. Blackburn conveyed the lot to said Hoxie & Mellor as security for said lumber. June 1, 1886, the plaintiff moved into the house with his family, and rented some rooms to other parties, and continued to live in the house until about May 1, 1887. On the 2d day of November, 1886, Hoxie & Mellor conveyed the property to the plaintiff, and on the 14th day of December, 1887, the plaintiff and his wife conveyed the same to their daughter Anna B. Blackburn for the expressed consideration of $1,250. The plaintiff testified that the reason the title was put in his daughter's name was that he had to borrow some money, and the party lending the money preferred to have the title in some one else's name. From the 1st of May, 1887, when plaintiff and his family moved out of the house, until the trial of this action, in February, 1893, the house has been either occupied by tenants or has stood vacant. Part of the time it was rented as a boarding house, part of the time as an hotel, part of the time as a dwelling house, and after October 1, 1892, it stood vacant. The plaintiff testified that when he made arrangements for the lot and to build a house on it he intended to make it his homestead; that his object in moving out of it was to get the good rent which he was offered because he needed the rent money, and that his intention then was to go back to it at the end of six months; that his intention since then is to go back to it, and that it was never his intention to abandon it. When the plaintiff and his family moved away from the premises, May 1, 1887, they moved into a small house or part of a house on another lot in Hurley, the title to which was in the Washburn Lumber Company. The plaintiff appears to have previously made some oral arrangement to purchase this lot. He testifies that his wife built the first part of the house or kitchen into which they moved, but that she had no means or property of her own, and the boys gave her money from time to time, and he himself did. An addition was immediately built on this fragmentary house. The money was furnished partly, certainly, by the plaintiff, and probably entirely so. In this house the plaintiff and his family lived continuously up to the time of the trial of this action. January 11, 1888, G. W. Washburn,...