Jandl v. Guziekiewicz

• Decision Date: 28 March 1928
• Citation: 218 N.W. 593,195 Wis. 258
• Parties: JANDL v. GUZIEKIEWICZ ET AL.
• Court: Wisconsin Supreme Court

195 Wis. 258

218 N.W. 593

JANDL

v.GUZIEKIEWICZ ET AL.

Supreme Court of Wisconsin.

March 6, 1928.

Dissenting Opinion March 28, 1928.

Appeal from a judgment of the Circuit Court for Racine County; E. B. Belden, Circuit Judge. Reversed.

Action by Charles O. Jandl against Stella Guziekiewicz and others, defendants, and Joseph Guziekiewicz, defendant and appellant. From a judgment in favor of the plaintiff, Joseph Guziekiewicz appeals.

On November 17, 1921, at a time when the defendant Stella Guziekiewicz was in financial difficulties, she deeded to her son, Joseph Guziekiewicz, then an infant, certain property in the city of Racine. This deed was delivered to an uncle of the son, who placed it on record in the office of the register of deeds. There is evidence in the record to the effect that the uncle had in his possession money belonging to the son, which he paid to the mother for a conveyance of the real estate. The court found, however, that the deed was without consideration, and was executed for the purpose of defrauding the creditors of Stella Guziekiewicz.

In May, 1922, Mrs. Guziekiewicz, being pressed by the First National Bank of Racine for the payment of her indebtedness to that bank, made application to the plaintiff, through his father and agent, W. J. Jandl, for a loan of $700, and offered as security a mortgage on the premises theretofore conveyed to her son. It appears that W. J. Jandl had made a prior loan to Mrs. Guziekiewicz, and knew about her financial affairs. He told her that he could not make a loan upon such security, because she had conveyed the real estate to her son. She told him, in effect, that she had so conveyed it for the purpose of defrauding her creditors. Either he or Mrs. Guziekiewicz consulted a lawyer as to whether it would be safe to take a mortgage on the property executed by Mrs. Guziekiewicz, who refused to give them any advice in the premises. Mr. Jandl and Mrs. Guziekiewicz then went together to consult with the county judge, apparently for the purpose of seeing whether the county judge would make an order permitting the minor son to mortgage the property. But they got no satisfaction from the county judge. Notwithstanding this, Mr. Jandl loaned to Mrs. Guziekiewicz the sum of $700, the money of his son, Charles O. Jandl, the plaintiff, and took as security therefor a mortgage executed by Mrs. Guziekiewicz on the property which she had conveyed to her son; the mortgage being executed to the plaintiff, Charles O. Jandl. The son signed neither the note nor the mortgage. Default having been made in the payment of the note and mortgage, this action was commenced to foreclose the mortgage. The defendant Joseph Guziekiewicz answered, setting up title in himself to the premises, that Stella Guziekiewicz had no title to the premises at the time the mortgage was executed, and, in a counterclaim, prayed for affirmative relief canceling and satisfying said mortgage of record.

The trial court held that the deed from the mother to the son was executed for the purpose of defrauding creditors, that it was void, that the appellant had no interest therein, rendered the usual judgment of foreclosure, and dismissed the appellant's counterclaim.

Eschweiler, J., dissenting.

Baumblatt & Weisman, of Racine, for appellant.

Simmons, Walker & Wratten, of Racine, for respondent.

OWEN, J.

[1] The trial court held that, as the money was borrowed by Mrs. Guziekiewicz for the purpose of paying her indebtedness to the First National Bank, and as it was used for that purpose, the plaintiff in this action was subrogated to the rights which the bank had against Mrs. Guziekiewicz. The respondents here do not seek to sustain the judgment upon any such theory, and in such respect they act advisedly. The plaintiff is not seeking to be subrogated to any rights which the bank might have had against Mrs. Guziekiewicz. He is seeking to foreclose a mortgage executed by Mrs. Guziekiewicz to himself, and the question of subrogation is not in the case. Respondent seeks to sustain the judgment in this court because Mrs. Guziekiewicz conveyed no title to her son; it being argued that there was no delivery of the deed. Whether there was a delivery of the deed was not an issue at the trial, and the court made no finding with respect thereto, except perhaps inferentially. It rather plainly appears that the findings of the court went on the assumption that there was a delivery of the deed. However that may be, the only evidence in the case bearing upon the subject affirms the delivery of the deed. The appellant testified as follows:

“Q. Who did you buy it (the property) from? A. The property was bought from my mother.

Q. And the deed was given to you? A. The deed was given to me.

Q. What did you do with the deed after you got it? Did you record it? A. The deed was recorded before I got it.

What is that? A. The deed was recorded before I got it. The deed was recorded by my uncle, who had bought the property for me.”

In view of this condition of the record, we must hold that there was a delivery of the deed.

[2] The trial court seemed to be of the opinion that, because the deed was given for the purpose of defrauding creditors, it conveyed no title to the son. It is settled by the decisions of this court that, even though such conveyance be void as to creditors, it is valid and binding between the immediate parties. Clemens...