Crocker v. Huntzicker

• Decision Date: 17 December 1901
• Citation: 113 Wis. 181,88 N.W. 232
• Parties: CROCKER v. HUNTZICKER ET AL.
• Court: Wisconsin Supreme Court

113 Wis. 181

88 N.W. 232

CROCKER

v.HUNTZICKER ET AL.

Supreme Court of Wisconsin.

Dec. 17, 1901.

Appeal from circuit court, Clark county; W. C. Silverthorn, Judge.

Action by E. E. Crocker, as assignee for creditors of George Huntzicker, against George Huntzicker and others. Judgment for plaintiff, and defendants appeal. Modified.

This action was commenced March 21, 1898, by the plaintiff, as assignee of George Huntzicker, to set aside certain conveyances and transfers made by the assignor to his children in September, 1893. The defendants severally answered by way of admissions, denials, and counter allegations. At the close of the trial the court found, as matters of fact, in effect: (1) That November 3, 1897, George Huntzicker made a voluntary assignment of all his property for the benefit of his creditors to one John Huntzicker, (2) who qualified as such assignee and entered upon the execution of his trust. (6) That at that time he was indebted in a sum in the aggregate far exceeding the amount of his assets. (3) That November 14, 1898, John Huntzicker was duly removed from his trust as such assignee, and the plaintiff, E. E. Crocker, was thereupon appointed in his place as assignee of George Huntzicker, (4) and as such commenced this action, and has continued as such assignee. (5) That the property received by the plaintiff as such assignee from the estate of George Huntzicker did not exceed $500. (7) That claims to the amount of more than $25,000 have been proved against the estate of George Huntzicker, (8) the greater portion of which are based upon liabilities which existed prior to September 9, 1893. (28 and 29) That the greater portion of the debts so proved was for the liabilities arising on account of his having indorsed and guarantied notes of the Neillsville Manufacturing Company to the Clark County Bank and others prior to September 9, 1893, and which notes had from time to time been renewed, and the several renewals indorsed or guarantied by George Huntzicker; that such liability of George Huntzicker was contingent September 9, 1893, and has since become absolute by the proof of such claims and the entry of judgment; that the manufacturing company has been insolvent ever since September, 1893, and there are no assets of that company to satisfy such indebtedness. (10) That September 9, 1893, George Huntzicker was a stockholder in the Neillsville Manufacturing Company, and had been one of the promoters thereof; that that company had then been doing business for several years, but had never declared any dividend or made any money, that September 9, 1893, it owed the Clark County Bank upwards of $40,000; that George Huntzicker was liable as indorser or guarantor upon all of said indebtedness, and was also indebted to a considerable amount on other obligations; that he then believed the company would never be able to meet its obligations on such indebtedness, but that he would ultimately be called upon to pay the same. (9) That September 9, 1893, George Huntzicker was the owner of a farm described, containing 440 acres of land, (11) which on that day he and his wife conveyed to their daughter, the defendant Mary E. Brooks, and which deed was thereupon recorded. (12) That the value of the farm at the time was $12,000. (13) That on the same day he sold and transferred to Mary E. Brooks all the farm machinery, horses, cows, farm implements, and a one-half interest in all young stock on the farm. (14) That the value of such personal property was at the time $750 (15) That the consideration for such conveyance and transfers was very inadequate, and much less than the value of the property, and the same was made upon an express agreement between the parties whereby a secret trust was reserved in George Huntzicker, by the terms of which the grantor reserved the right to use and occupy the farm, and the right to use the personal property without accounting to Mary E. Brooks therefor. (16) That such agreement was actually carried out by the parties, and George Huntzicker and wife continued to have and enjoy, use and occupy, the farm from September 9, 1893, until March, 1899, and the personal property from September 9, 1893, to November 1, 1897, two days before making the assignment. (17) That such conveyance and transfer of the farm and personal property were made with the intent and purpose on the part of George Huntzicker and wife to hinder, delay, and defraud his creditors of their lawful claims and demands; (18) and that Mary E. Brooks received the same with knowledge that the same was conveyed and transferred to her for the purpose of placing such property beyond the reach of the creditors of George Huntzicker, and that she participated in such fraudulent intent. (19) That September 12, 1893, George Huntzicker, being the owner of certain lots in Neillsville, described, (20) with his wife, conveyed the same to their son, the defendant Frank Huntzicker, by deed, which was on that day recorded. (21) That such conveyance was made voluntarily and without consideration, and for the purpose of placing said property beyond the reach of the creditors of George Huntzicker, and for the purpose of hindering, delaying, and defrauding them. (22) That Frank Huntzicker at the time knew of such intent and purpose, and participated therein, and received the property for the purpose of holding the same in trust for the use and benefit of George Huntzicker, and thus hinder, delay, and defraud his creditors. (30) That October 9, 1896, at the request of George Huntzicker, the defendants Mary E. Brooks and her husband executed a mortgage on 120 acres described (being a portion of said farm) to one Ida Lowe for $1,000, and which mortgage was recorded, and the $1,000 realized therefrom was paid on one of the debts of George Huntzicker. (23 and 25) That October 26, 1897, Mary E. Brooks and her husband mortgaged the other 320 acres of said farm to Scott, Tiffany & Paul for $5,000, which amount was received by Mary E. Brooks, and by her paid over to her husband, Walter C. Brooks, the defendant herein, and by him used and disposed of, and the mortgage was duly recorded. (24) That said mortgage was so given at the time when an execution was in the hands of the sheriff of Clark county, in the case of the First National Bank of Winona against George Huntzicker and others, and with knowledge on the part of Walter C. and Mary E. Brooks that the sheriff had threatened to levy upon the property of George Huntzicker, and was given by them for the purpose of further hindering, delaying, and defrauding the creditors of George Huntzicker in the collection of their debts. (26) That November 1, 1897, and two days prior to the making of such assignment, and in contemplation thereof, Mary E. Brooks, claiming and pretending to be the owner of the personal property so transferred to her by her father September 9, 1893, and the increase thereof, with the aid of her father and mother and husband, and for the purpose on the part of all of said persons of placing said personal property beyond the reach of George Huntzicker's creditors, and preventing his assignee thereafter to be appointed from getting possession thereof, made sale of what remained of such stock to the defendant John Shanks, who at the time knew that George Huntzicker was insolvent, and that John Shanks received the property with actual knowledge of the intent with which the same was so sold to him, and conspired with such defendants in the fraudulent purpose to save the proceeds of the property for the benefit of George Huntzicker, and to hinder, delay, and defraud his creditors, and that the proceeds of such sale ($460) came into the hands of George and Margaret Huntzicker and Mary E. and Walter C. Brooks, and the property so fraudulently conveyed into the possession of John Shanks, and the same was disposed of by him so that the plaintiff, as such assignee, cannot get possession thereof. That November 3, 1897, when George Huntzicker made the voluntary assignment as stated, he was unable to pay his debts, and was insolvent, and his indebtedness was largely in excess of all the property he then owned, and also including the value of the property he had so fraudulently conveyed to the other defendants, as found. (31) That notice of the pendency of the action was filed in the register's office May 10, 1898; that all the material allegations of the complaint were proven and true; that, among other things, the amended complaint alleged, in effect, that prior to the commencement of this action certain creditors of George Huntzicker, whose indebtedness existed prior to September 9, 1893, reduced their claims to judgments, which were duly rendered and docketed in the office of the clerk of the circuit court for Clark county, where the said George Huntzicker then and ever since resided, and that executions of such judgments were and had been duly issued to the sheriff of Clark county out of the circuit court of that county, and were duly returned by the sheriff nulla bona before the commencement of this action. As conclusions of law the court found, in effect, that September 9, 1893, George Huntzicker was a debtor, within the meaning of section 2320 of the Statutes; that the conveyances and transfers from him and his wife to Mary E. Brooks and to Frank Huntzicker were, respectively, fraudulent and void as to his creditors and as to the assignee, and that the plaintiff, as such assignee, was entitled to judgment canceling and setting aside such conveyances, and transferring the title to the real estate to the plaintiff; that the transfer of the stock to John Shanks was fraudulent and void as to such creditors and as to the plaintiff, and that the plaintiff was entitled to judgment against all said five participants for $460, the value thereof, with interest thereon from the date of the commencement of this action; that the plaintiff, as such assignee, was entitled to...