Huntzicker v. Crocker

• Decision Date: 10 March 1908
• Parties: HUNTZICKER v. CROCKER.
• Court: Wisconsin Supreme Court

135 Wis. 38

115 N.W. 340

HUNTZICKER

v.CROCKER.

Supreme Court of Wisconsin.

March 10, 1908.

Appeal from Circuit Court, Milwaukee County; E. Ray Stevens, Judge.

Action by Margaret Huntzicker against E. E. Crocker, as assignee for creditors of George Huntzicker. Judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.Charles F. Grow and George L. Jacques, for appellant.

R. J. MacBride and L. M. Sturdevant, for respondent.

WINSLOW, C. J.

The plaintiff brought action under section 3186, St. 1898, alleging an inchoate right of dower in certain farm lands, and that the defendant made some claim thereto, and demanding establishment of her right. The defendant answered by general denial, and the action was tried by the court. It appeared that prior to September 9, 1893, the farm in question was owned by George Huntzicker, the husband of the plaintiff, and that on said day said George and the plaintiff conveyed the same, together with a quantity of personal property thereon, to their daughter Mary Brooks; that said George was heavily indebted at the time of the conveyance, and on November 3, 1897, made a voluntary assignment of his property for the benefit of creditors to the defendant; that the defendant as such assignee thereafter brought action against the plaintiff and her husband and Mary Brooks to set aside such conveyance in fraud of creditors; and that judgment in such action was rendered adjudging that the same were made with the intent and purpose on the part of both plaintiff and her husband to hinder, delay, and defraud the husband's creditors, and setting the same aside, and transferring title to said lands to the defendant, as assignee, which judgment was affirmed by this court upon appeal, with certain modifications not material here. Crocker v. Huntzicker, 113 Wis. 181, 88 N. W. 232. Upon these facts the trial court concluded that the plaintiff by her participation in the fraudulent conveyance aforesaid had placed herself in such a position that a court of equity would not grant her relief and dismissed the complaint. From this judgment, the plaintiff appeals.

The respondent claimed in the trial court, and claims here: (1) An inchoate right of dower is not such an incumbrance on land or interest therein as will entitle its owner to maintain an action under section 3186, supra; and (2) that the former judgment in the case of Crocker v. Huntzicker, supra, is res judicata, and bars the plaintiff's claim. The trial court did not pass on these questions, because it reached the conclusion that the plaintiff did not come into court with clean hands; but we find it necessary to consider and determine them.

1. Our statute (section 3186, St. 1898), after providing that any person having the legal title to lands may institute an action against another who sets up a claim thereto, further provides that any person not having such title or possession, but having any lien or incumbrance, on land, shall have the same right of action to test the validity of any other claim, lien, or incumbrance thereon. This court held in a very early decision that an outstanding inchoate right of dower is an incumbrance on land. Wright v. Young, 6 Wis. 127, 70 Am. Dec. 453. So the plaintiff comes within the very terms of the statute authorizing the holder of an incumbrance to bring the action. Not only this, but it was held in Madigan v. Walsh, 22 Wis. 501, that an inchoate right of dower is such an interest in land as will enable a wife to bring action to remove a cloud thereon, and the principle that such right is an interest in land was reaffirmed in Weston v. Weston, 46 Wis. 130, 49 N. W. 834, and Hausmann v. Kempfert, 93 Wis. 587, 67 N. W. 1136. There can be no doubt therefore as to the plaintiff's right to bring this action.

2. The judgment in the assignee's former action to which action the present plaintiff was a party defendant in terms divested the plaintiff of all right, title, and interest in the land in question, and transferred the same to the assignee, and it is claimed that this judgment is res judicata, and estops the plaintiff from claiming her inchoate right of dower therein. Inspection of the pleadings in the former action shows that the plaintiff's dower right was not attacked in the complaint, nor set up by the answer. There was no issue raised, litigated, or decided in that action touching the right of dower. The issue simply was whether the deed to Mary Brooks was fraudulent as to creditors, and the general terms of the judgment must be construed in the light of the issue litigated. The cause of action here is entirely different from the cause of action litigated in the former action. Had the assignee chosen to attack the right of dower in the former action, or had the present plaintiff claimed the right in that action, probably the judgment which in broad terms divested her of any right or claim to the lands would have operated to cut off her dower right but such was not the case. A judgment is a complete bar in a subsequent action between the same parties, not only as to every point actually presented and decided in the former action, but also as to every point which might have been presented and decided therein when the second action is upon the same cause of action; but, when the second action is upon a different claim or cause of action, the former judgment is only a bar as to matters actually presented and litigated therein. Wentworth v. Racine County, 99 Wis. 26, 74 N. W. 551;Grunert v. Spalding, 104 Wis. 193, 80 N. W. 589. The question of the present plaintiff's dower right in the lands not having...