Bleiler v. Moore

• Decision Date: 24 November 1896
• Parties: BLEILER v. MOORE ET AL.
• Court: Wisconsin Supreme Court

94 Wis. 385

69 N.W. 164

BLEILER

v.MOORE ET AL.

Supreme Court of Wisconsin.

Nov. 24, 1896.

Appeal from circuit court, Green county; John R. Bennett, Judge.

Action by John Bleiler against Peter T. Moore and another. From a judgment for defendants, plaintiff appeals. Reversed.

This is an action of replevin. The plaintiff's son, William J. Bleiler, was indebted to the plaintiff in a considerable sum, and, becoming embarrassed, conveyed his real estate and personal property to his father in payment of his debt. The defendants, who were the sheriff and his deputy, levied an execution against William on the personal property so transferred to the plaintiff. The plaintiff replevied. The defendants seek to justify under the execution. The issue was whether the sale of this property to the plaintiff was fraudulent as against creditors of William. There was verdict and judgment for the defendants, from which the plaintiff appeals.

J. M. Becker, for appellant.

John Luchsinger and J. D. Dunwiddie (B. F. Dunwiddie, of counsel), for respondents.

NEWMAN, J. (after stating the facts).

The decisive question is whether there was reversible error in the charge of the trial court. The appellant complains that the trial court, in substance, instructed the jury “that a sale made by a vendor with intent to hinder, delay, and defraud his creditors is void, if the vendee has knowledge of facts and circumstances such as should put a prudent man upon inquiry, by which he might find out the fraudulent purpose.” This is alleged to be error. But this really states the rule applicable to a sale made by an insolvent debtor to a stranger with substantial accuracy. The stranger is bound at least to refrain from knowingly obstructing the rights of creditors. But the case is different where a creditor in good faith takes the property of his debtor in payment of his honest debt. He is no mere volunteer or stranger. He is restricted merely to honesty. He may not purposely obstruct other creditors of his debtor, even to come by his own. But it is no fraud upon the other creditors, although he may know or believe that the debtor is giving his debt a preference for the purpose of avoiding the payment of other debts, and that other creditors will thereby fail to realize their claims, provided, always, the purpose of the vendee is bona fide the realization of his debt, and he does not participate in the fraudulent purpose of his debtor; for, in order to avoid such a sale, both parties must participate in the fraudulent design. Gage v. Chesebro, 49 Wis. 486, 5 N. W. 881;Plow Co. v. Hanthorn, 71 Wis. 529, 37 N. W. 825;Erdall v. Atwood, 79 Wis. 1, 47 N. W. 1124;Bannister v. Phelps, 81 Wis. 256, 51 N. W. 417;Barr v. Church, 82 Wis. 382, 52 N. W. 591.David v. Birchard, 53 Wis. 492, 10 N. W. 557, which decides that: “Where a mortgage is given to secure an honest debt, but with the intent to hinder, delay, or in any way put off the creditors of the mortgagor, it is void if the mortgagee had knowledge of such intent; and this knowledge need not be actual, but may be inferred from the knowledge of the mortgagee of facts and circumstances sufficient to raise such suspicions as should put him on inquiry,”--is entirely out of harmony with the decisions of this court, both before and since, and is not to be followed as an authority upon this question. Mere knowledge of the corrupt sentiment in the mind of his debtor, not shared by him, does not deprive the honest creditor of the right to accept the proffered payment or security of his just claim. It is to be inquired whether the charge was really obnoxious to...