Comstock v. Bechtel

• Decision Date: 22 September 1885
• Citation: 24 N.W. 465,63 Wis. 656
• Parties: COMSTOCK v. BECHTEL.
• Court: Wisconsin Supreme Court

63 Wis. 656

24 N.W. 465

COMSTOCK

v.BECHTEL.

Supreme Court of Wisconsin.

Filed September 22, 1885.

Appeal from circuit court, Dane county.

Replevin for two horses, one harness, one sleigh, one wagon, and two cows, alleged to have been levied upon and seized by the defendant, who was the sheriff of Dane county, by virtue of a certain attachment, and an execution duly issued by the circuit court of that county against the property of the plaintiff, and in the hands of such sheriff for service. The plaintiff claims that the property in controversy is exempt from seizure by virtue of such writs.

In his answer the defendant justifies the seizure of the property by virtue of the aforesaid writs, and alleges that the same is not exempt from being so seized, because the plaintiff was one of a firm hopelessly insolvent, against which judgments for large amounts had been rendered, and others were about to be entered in actions then pending, and that plaintiff, for the purpose of defrauding the creditors of such insolvent firm, sold certain notes and securities owned by him, and not exempt, and with the proceeds thereof purchased the property so seized with the intention of holding it as exempt property.

The cause was tried by the court without a jury. The court found that the defendant was sheriff of Dane county, and as such, by virtue of valid process, seized the property claimed on February 1, 1884, and that at the time of such seizure the same was all the personal property which the plaintiff owned; also that the value of the property was $685, and that the amount for which such writs were issued exceeded that sum. The more material findings of fact are as follows: “(5) That on the thirty-first day of December the said plaintiff was the owner of, and held in his own name, a note secured by mortgage upon real estate of the value of twelve hundred dollars, ($1,200,) and one note of the value of one hundred dollars, ($100.) (6) That at this time the said plaintiff was heavily indebted and wholly insolvent; that said plaintiff, although repeatedly requested by his creditors to pay his indebtedness immediately preceding the date of the purchase of said property, to-wit, January 1, 1884, neglected so to do; that said plaintiff, at the time so requested by his creditors to pay his indebtedness, stated to his said creditors that he was unable to pay, and that he did not have or own any property or money wherewith to pay and discharge his indebtedness. (7) That said plaintiff did, on the thirty-first day of December, 1883, dispose of and sell said notes to one Stewart Shampnor, and thereby intended to prevent and keep his creditors from levying on said note for the purpose of satisfying their claims, and that the said plaintiff, on the first day of January, 1884, did use the funds by him raised on the sale of the notes as aforesaid, and applied said funds in payment of the purchase price of the property above described, and by him so claimed as personal exemptions, and that the said plaintiff, by said purchase of said property, intended to and did acquire the personal property exemptions by law provided, and that said plaintiff, by said immediate purchase, intended to prevent his said creditors from interfering with his said rights to acquire said personal property exemptions by means of their levyingon and applying said moneys in satisfaction of their claims and demands against him.”

As conclusions of law the court found “that said plaintiff is entitled to the return of said property, and to hold it as his personal property exemptions;” also that he was entitled to recover nominal damages and costs. Judgment for the plaintiff was ordered and entered accordingly. The defendant appeals.

La Follette & Siebecker, for respondent, Frank C. Comstock.

Rufus B. Smith, for appellant, Daniel Bechtel.

LYON, J.

The circuit court found that the plaintiff sold the notes mentioned in the findings of facts with the intention of preventing a seizure thereof by his creditors; and that, with the proceeds of the notes, he purchased the property in controversy, intending thereby to acquire exempt personal property which would be beyond the reach of his creditors. That such were the intentions of the plaintiff is the inevitable conclusion from the facts of the sale of the notes and the purchase of the property, because it must be presumed that the plaintiff intended the necessary results of his acts, and it was the necessary and inevitable result of such sale and purchase (if valid) that the notes, and the property purchased with the proceeds thereof, were thereby placed beyond the reach of creditors of the plaintiff. The intention of the plaintiff is, therefore, rather the subject of a conclusion of law to be deduced from the facts, than an independent fact in the case. The findings would not have been any more favorable to the plaintiff had nothing been said therein concerning his intentions; and for like reasons they would not be any less favorable to him had the court found expressly that such sale and purchase were made by the plaintiff with intent to hinder, delay, or defraud his creditors. That also is the subject-matter of a deduction from the facts.

The material facts are, therefore, that the plaintiff was wholly insolvent; that he owned two notes which were liable to be reached by his creditors; and that he sold such notes, and, with the proceeds, immediately purchased the property in controversy. From these facts the intention of the plaintiff to place his property beyond the reach of legal process must be presumed. The precise question to be determined is, therefore, is property which under the statute (Rev. St. 781, sec. 2982, § 6) is ordinarily exempt from seizure on attachment or execution liable to such seizure if the debtor is insolvent, and has purchased...