Evans v. Rugee

• Decision Date: 31 May 1883
• Citation: 16 N.W. 49,57 Wis. 623
• Court: Wisconsin Supreme Court
• Parties: EVANS v. RUGEE.

57 Wis. 623

16 N.W. 49

EVANS

v.RUGEE.

Supreme Court of Wisconsin.

Filed May 31, 1883.

Appeal from county court, Milwaukee county.Ludwig & Somers and J. C. McKenney, for appellant, Catherine Evans.

Rogers & Herdegen and F. P. Smith, for respondent, John Rugee.

ORTON, J.

The plaintiff was the wife of Francis C. Evans, the defendant in the attachment and execution, by virtue of which the defendant, as sheriff, took possession and holds the property as belonging to said defendant, which the plaintiff claims in this suit belonged to her as her separate property previously purchased by her from her said husband, and with means derived from her separate property and estate. The main issue to be tried was the question of fraud in said purchase. The jury found in their special verdict substantially that the sale and transfer of said property from the defendant in the attachment and execution to her was for a consideration, and that it consisted of the sum of $6,700, in money belonging to her separate estate, which she had previously loaned to him, but they found also that the bill of sale to her of the property was not received by her in payment of said debt in good faith. This made the question of her intent to defraud the creditors of her husband in taking such bill of sale the only question, so that it was a very material question in this case to what extent and in what sense the law imposed upon the plaintiff the burden of proof of showing the bona fides or good faith of the transaction.

The first special instruction given to the jury by the county court was as follows: “This action being between the wife of F. C. Evans and the creditors of her husband, the plaintiff claiming the property in dispute by purchase from her said husband, the burden of proof is upon her to prove that she made such purchase in good faith, which proof must be made by clear and satisfactory evidence that she made such purchase from her husband in good faith and for a valuable consideration, paid out of her separate estate, or by some other person for her,” etc. This instruction imposes on the plaintiff the burden of proof that the sale was made in good faith, and also for a valuable consideration paid out of her separate estate, or by some other person for her. It imposed upon her the burden of proof of two facts: First, her good faith; and, second, the consideration. The whole burden is imposed on her negatively to disprove the fraud, or affirmatively, to prove her good faith in the transaction in the broadest and most comprehensive language. When she has proved that she has made the purchase for a valuable consideration, paid out of her separate estate, or by some other person for her, she has then proved all the bona fides, or good faith, in the purchase required by the statute, section 2319, as correctly construed. Aside from this, the burden of proving the fraud by clear and satisfactory evidence is upon the party alleging it, as it always was. Bond v. Seymour, 2 Pin. 105. This question has been so recently decided by this court in Semmens v. Walters, 55 Wis. 675, [S. C. 13 N. W. REP. 889,] that it is unnecessary to do more than to cite the case and refer to the authorities therein mentioned, commented on, and explained. This instruction was palpably erroneous, touching a vital question in the case.

The second special instruction was equally erroneous, as follows: “The law of this case as applied to the consideration of the evidence herein is that Mrs. Evans is required to establish her title to the property claimed by her in this case by...