Kluender v. Fenske

• Decision Date: 18 October 1881
• Court: Wisconsin Supreme Court
• Parties: KLUENDER AND ANOTHER v. FENSKE AND ANOTHER.

53 Wis. 118

10 N.W. 370

KLUENDER AND ANOTHER

v.FENSKE AND ANOTHER.

Supreme Court of Wisconsin.

Filed October 18, 1881.

Appeal from circuit court, Milwaukee county.

The plaintiff Louisa is the widow, and the plaintiff William is the son, of Christian Kluender, who died August 15, 1871, and they claim title to the premises in question as widow and heir at law of said deceased. The defendant Louise is a married woman, and the daughter of the plaintiff Louisa by a former husband, by the name of Weiss or Weissfuss; and she claims title to the same premises as devisee of her brother, Ernst Weissfuss, who died February 27, 1870, leaving a will, which was admitted to probate May 11, 1870. It appears from the evidence that many years ago Christian Kluender had a farm in Sheboygan county, which he sold to one Jalleff for $1,300, receiving $400 thereof down, in gold, and a mortgage of $900 for the balance, which was foreclosed, and upon the sheriff sale there was paid to Ernst Weissfuss, as the agent of his step-father, Christian Kluender, $1,050; that Ernst was unmarried, and during the times referred to was living with his step-father; that Christian Kluender was very ignorant, and hence that Ernst, who seemed to have some intelligence, and was considerable older than Christian's children, attended to his business for him; that Ernst negotiated the purchase of the premises in question, and paid $775 therefor from the $1,050 belonging to his step-father and received by him on said sheriff's sale, taking the deed thereof to himself, March 16, 1866, but in the name of Ernst Kluender, instead of his true name of Ernst Weiss or Weissfuss; that subsequently Ernst Weissfuss purchased and paid for a building or house, with moneys belonging to Christian Kluender, and moved the same onto the premises in question; that thereupon Christian Kluender, with his family, consisting of his wife and his children by her, and his step-daughter, Louise Weissfuss, now the defendant Mrs. Fenske, and his step-son, Ernst Weissfuss, moved into the house on said premises, and remained there with his family until the time of his death. There was no evidence that Christian Kluender, or either of the plaintiffs, ever knew that Ernst took the deed to himself, or had any reason to suppose that the title was not in Christian Kluender, nor any evidence that he, or either of the plaintiffs, knew, or had reason to suppose, that Ernst had assumed to devise the same by will, until 1880, when the plaintiffs did learn that the deed of the premises did run to Ernst Kluender, and that Ernst Weissfuss had, in the name of Ernst Kluender, devised the same to his sister, Louise Weissfuss, but in the name of Louise Kluender. The family continued to live upon the premises after the death of Ernst and Christian, except that William got married and left. It also appears that Ernst, in his life-time, was a member of a church, and that his name was on the church roll as Ernst Weiss, and that he was in the habit of answering the monthly roll calls of that church by that name. The plaintiffs having rested their case, and the counsel for defendant having moved that the complaint be dismissed because the plaintiffs had not made out a case, the court granted the motion, to which ruling of the court the plaintiff then and there duly excepted. And thereupon judgment was entered accordingly in favor of the said Louise Fenske, and against the plaintiffs, dismissing the complaint, and for costs, January 11, 1881, from which judgment the plaintiffs have appealed to this court.Gottlieb Engel and Flanders & Bottum, for appellants.

Louis B. Schram and J. R. Brigham, for respondents.

CASSODAY, J.

Section 7, c. 84, Rev. St. 1858, provided, as section 2077, Rev. St., now does, that “when a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment is made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provision of the next section.” That section was copied from section 7, c. 57, Rev. St. 1849. The purpose of the section is manifest from the “next section” therein referred to, which made such conveyance presumptively fraudulent, as against the creditors of the person paying the consideration, and provided that unless such fraudulent intent was disproved a trust should result in favor of such creditors. Section 8, c. 57, Rev. St. 1849; section 8, c. 84, Rev. St. 1858; and section 2078, Rev. St. The purpose clearly was to prevent a debtor from defrauding his creditors by buying land and paying for them with his own money, and taking the title in the name of another. By doing so a debtor takes the risk of losing all claim to the land, and yet creating a resulting trust in favor of his creditors, enforceable by them. This statute was taken from the New York statute, and hence the adjudications in that state since its enactment there may be instructive. Garfield v. Hatmaker, 15 N. Y. 475;Wood v. Robinson, 22 N. Y. 564;McCartney v. Bostwick, 32 N. Y. 53;Everett v. Everett, 48 N. Y. 218. The section is clearly aimed at the person who is the active agent in thus procuring a deed in the name of another; but Christian Kluender was not the active agent in procuring the deed in the name of Ernst, but Ernst, while acting as the agent of Christian, took the deed to himself, but in the name of Ernst Kluender, and hence the section quoted would seem to be, strictly speaking, inapplicable. Section 9, c. 84, Rev. St. 1858, is the same as section 9, c. 57, Rev. St. 1849, and section 2079, Rev. St., and provided that “the preceding seventh section shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the knowledge or consent of the person paying the consideration, or when such alienee, ...