Bragg v. Gaynor

• Decision Date: 21 June 1893
• Citation: 55 N.W. 919,85 Wis. 468
• Parties: BRAGG v. GAYNOR ET AL.
• Court: Wisconsin Supreme Court

85 Wis. 468

55 N.W. 919

BRAGG

v.GAYNOR ET AL.

Supreme Court of Wisconsin.

June 21, 1893.

Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.

Action under Sanb. & B. St. § 3029, in the nature of a creditors' suit, by Edward S. Bragg against O. L. Helmer, Benjamin Chapman, Leonard L. Chapman, and Patrick Gaynor, impleaded with James Gaynor and others, to enforce a judgment against James Gaynor. There was a judgment for plaintiff, and Helmer, the Chapmans, and Patrick Gaynor appeal. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This is an action in the nature of a creditors' suit under the statute Sanb. & B. St. § 3029, after the return of an execution on a judgment unsatisfied, brought in the circuit court for Fond du Lac county by the plaintiff, as assignee of a judgment rendered in favor of Edmund Blewett and Patrick Gaynor against James Gaynor in the circuit court for Winnebago county, March 31, 1890, for $8,114.50, damages and costs. A history of previous litigation which resulted in the judgment will be found in 77 Wis. 378, 46 N. W. Rep. 547, and of a subsequent action between the judgment debtor and Edmund Blewett and Patrick Gaynor to limit or reduce such judgment in 55 N. W. Rep. 169. The assignment of the judgment was executed by Blewett only, who, it is claimed, was the real owner of it. That Patrick Gaynor falsely claimed the entire judgment belonged to him, and November 10, 1890, at the request of James Gaynor, and without any consideration therefor, fraudulently executed a satisfaction of said judgment under seal in his name, and in the name of Blewett as well, but without any authority in that behalf, and both the said Patrick and James Gaynor, who had notice of Blewett's rights, claim that said judgment had been fully satisfied, and was rightfully discharged. The complaint alleges, among other things: (1) That on the 9th of January, 1883, James Gaynor loaned to O. L. Helmer and C. S. Cook the sum of $7,000, taking security therefor on real estate situated in Fond du Lac county, and described in the complaint, in the name of his wife, Mary Gaynor, but which had been transferred in 1886 to the said James Gaynor, and was still held and owned by him, and was past due and unpaid, said Cook having been released from all liability thereon. (2) That he owns and holds a claim and debt secured by mortgage on real estate in said county, described in the complaint, for $2,500, against said O. L. Helmer, then past due and unpaid; and that, if any transfer had been made of the same, it was made to defraud the plaintiff. (3) That said James Gaynor is the owner and holder of a certain note and mortgage executed by Benjamin and Leonard Chapman for $4,500 on real estate in said county, made to said Mary Gaynor for his use, and which were assigned to him in 1888, and are dated October 17, 1884, and remain outstanding and unpaid, except as to the sum of $300; and any subsequent transfer by said Gaynor was fraudulent and colorable. In respect to these mortgages the complaint stated the date and volume and page of the registry thereof in the office of the register of deeds of said county. (4) That the defendant John Hughes has in his possession or under his control moneys, credits, and effects belonging to the defendant James Gaynor in excess of $600. (5) That the defendant Marquis Moore has in his hands, or in his name or control, as trustee or otherwise, real estate, or equitable interests therein, or property, in which the defendant James Gaynor has an interest, legal or equitable. The several parties above named, to wit, O. L. Helmer, the Chapmans, John Hughes, and Marquis D. Moore, when this action was commenced, all resided in Fond du Lac county, in this state, and were served with process. Patrick Gaynor and Edmund Blewett were also made defendants in respect to the controversy concerning their alleged interests in or ownership of the judgment assigned by the latter to the plaintiff. The action was commenced January 1, 1891, and the defendants Helmer, the Chapmans, and Hughes were enjoined from making payment of the said several debts to said Gaynor or to any one for him, etc., and this injunction was served on James Gaynor, with the summons and complaint, on the 9th day of January, 1892, in Chicago, Ill., with the summons and complaint, under an order made in that behalf. The complaint was amended February 21, 1891, by making W. D. Witherwax a party defendant, and alleging that since the commencement of the action the defendant James Gaynor had caused to be recorded in the office of the register of deeds of Fond du Lac county what purports to be assignments of the Helmer mortgages and the Chapman mortgage; and that said assignments are merely colorable, and made and received to aid the said James Gaynor to hinder, delay, and defraud the plaintiff, and ought in equity to be canceled. Plaintiff prayed judgment that James Gaynor be adjudged to apply to the payment of the judgment any money, property, debts, choses in action, or equitable interests belonging to him, or held in trust for him, or in which he is in any way or manner beneficially interested; that the release of the judgment given by Patrick Gaynor to him be declared fraudulent and void as against the plaintiff, and be canceled, and the judgment adjudged to be the property of and belong to the plaintiff; that said Patrick Gaynor did not then have, and has never since acquired, any interest or right to control such judgment or any part thereof; that the defendant James Gaynor be enjoined from selling, etc., any of his property, debts, things in action, equitable interests, etc., and that the defendants Helmer, the Chapmans, Hughes, and Moore be enjoined from making any payment on their respective notes and mortgages and debts described in the complaint; that a receiver be appointed to sell or otherwise dispose of all said property, equitable interests, etc., of the said James Gaynor; and for other and further relief. The defendants James Gaynor and Witherwax, both of whom resided at Chicago, Ill., were served under orders in the usual form with the summons and complaint, based on the verified complaint and affidavits of the plaintiff. The defendants James Gaynor and W. D. Witherwax did not appear. The defendant Helmer admitted that he, with C. S. Cook, borrowed $7,000, and gave as security therefor a mortgage upon the lands stated in the complaint, which ran to Mary Gaynor, wife of James Gaynor, and was recorded as stated; that the money was received from James Gaynor; the assignment of record of said mortgage, dated March 11, 1886, from Mary Gaynor to Patrick Gaynor, and an assignment thereof from Patrick Gaynor to James Gaynor, dated April 14, 1888, and that Cook had been discharged from all liability for the debt secured thereby, and that said mortgage was unpaid as to the principal thereof. Further, that about July 30, 1889, he borrowed from James Gaynor the sum of $2,500 upon the real estate described in the complaint, and made a mortgage therefor, which was recorded as therein alleged, which is still unpaid. It further set up that each of the mortgages was, prior to the bringing of the action, assigned and transferred, with the debts secured thereby, by James Gaynor to some party unknown to defendant, and alleged that James Gaynor is not and was not at the commencement of the action, the owner and holder of said mortgages, or either of them. Defendant Benjamin Chapman admits that on or about the 17th of October, 1884, he, with one Leonard L. Chapman, made jointly a mortgage upon certain lands described in the complaint in the county of Fond du Lac for $4,500 to one Mary Gaynor, which was recorded as in the complaint alleged, and that there appears in the records of the office of the register of deeds an assignment thereof to James Gaynor, dated on or about April 2, 1888, and that said mortgage is unpaid as to the principal sum thereof, except $300, paid on or about November 1, 1889; and alleges that said mortgage was made for the benefit of said mortgagee, Mary Gaynor; that it was, before this action, duly assigned by said James Gaynor to some party unknown to defendant; that he, Gaynor, has not now, and did not at the beginning of this suit have, any interest in or claim upon said mortgage, or the notes or debt secured thereby. The answer of Leonard L. Chapman is the same, in substance, as that of Benjamin Chapman, except that it alleges an assignment of the mortgage to W. D. Witherwax, made by James Gaynor, dated and acknowledged September 1, 1890, recorded February 10, 1891, and avers that the assignment was made and accepted in good faith, for a valuable consideration, without fraud, and for the purpose of transferring the mortgage only, and not for the purpose of hindering, delaying, and defrauding creditors of James Gaynor. The defendant Patrick Gaynor alleged that in the action in which the judgment was recovered against James Gaynor he was a party plaintiff in interest, and not a nominal party. His answer then proceeds to set up the transactions between himself and James Gaynor as alleged partners in the business of logging in 1882; that he was hostile to the recovery of the judgment against James Gaynor, and admits that he testified that the alleged causes of action set up in the complaint in that action had been fully discharged and satisfied before it was commenced, and he denied all fraud and collusion between himself and James Gaynor. He admitted the execution of the satisfaction of judgment, and insisted that it was a due and legal satisfaction, and that he had authority to satisfy it for himself and his coplaintiff therein, Edmund Blewett. He also set up a contract for logging between Edmund Blewett and James Gaynor, and proceeded to give an account of the dealings of James Gaynor and himself and Edmund Blewett; that by reason of the premises there was...