Gettelman v. Gietz

• Decision Date: 13 January 1891
• Citation: 47 N.W. 660,78 Wis. 439
• Parties: GETTELMAN v. GIETZ ET AL.
• Court: Wisconsin Supreme Court

78 Wis. 439

47 N.W. 660

GETTELMAN

v.GIETZ ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1891.

Appeal from superior court, Milwaukee county.

Hopkins & Wambold, for appellants.

Fiebing & Killilea, for respondent.

COLE, C. J.

This action is in the nature of a creditors' bill, to have certain deeds declared void as against the plaintiff, who is a judgment creditor of the defendant Herman Gietz. An execution has been issued on the judgment, which has been returned unsatisfied. It is alleged in the complaint that the judgment debtor has caused to be conveyed to his wife, Susannah Geitz, two pieces of real estate, for the purpose of placing them beyond the reach of his creditors. The plaintiff was not a creditor at the time one of these properties was conveyed to the wife, but it is claimed that the evidence shows that the deed as to that property is invalid as to subsequent creditors. The court below, however, passed no judgment as to the validity of the transfers of the real estate described as lot 20 in block 6, Miner's addition, in the Ninth ward of the city of Milwaukee, so that cause of action is out of the case, and will not be considered, as the plaintiff is satisfied with the relief which was given as to the other piece of real estate. That piece is described in the case as being part of lots 25, 26, 27, and 28, in block 4, Miner's addition, located on Lisbon avenue and Twenty-First street. The court below found that the defendant Susannah Gietz nominally purchased this real estate of one Alois Schmidt, Jr., in April, 1888, for her husband, and with his money; that she furnished no part of the purchase money from her separate estate, but that the entire consideration was furnished by him, and that it was agreed and understood between the defendant husband and wife that the deed should be taken in her name for the benefit of the husband, and should be held by her in order to defraud and embarrass the husband's creditors, and especially to defraud the plaintiff If the husband did really furnish the money to purchase this property with the under standing that the title should be conveyed to his wife to be held in trust for him, there can be no doubt but that such conveyance is fraudulent as to the creditors, and that a trust will result in favor of such creditors to the extent which may be necessary to satisfy their just demands. Such is a clear declaration of the statute, (section 2078.)

Now, as to the question, who furnished the money to purchase this piece of property? There is abundant testimony that it was furnished by the husband, as the learned trial judge found. It is said that the burden was upon the plaintiff to prove by a fair preponderance of testimony that it was the husband's money and not the...