Action by Daniel Marston and another against Hubert Dresen and Josephine Dresen, his wife. Judgment for defendants. Plaintiffs appeal. Affirmed.
The other facts fully appear in the following statement by WINSLOW, J.:
Action in the nature of a creditors' bill. The defendants are husband and wife. The plaintiffs are judgment creditors of the firm of Dresen & Fjelstad, of which firm defendant Hubert was a member, and this action is brought to set aside certain transfers of real and personal property from Hubert to Josephine as being in fraud of Hubert's creditors. At the close of the trial the circuit judge made findings as follows: “(1) That in the fall of 1881 the defendant Hubert Dresen and one Andrew Fjelstad entered into copartnership in the retail grocery business at the city of La Crosse under the firm name of Dresen & Fjelstad, which partnership continued until about the 1st of January, 1887, said Andrew Fjelstad being the business manager of said firm; and while so engaged in such business said Dresen & Fjelstad had dealings with, and in course of trade purchased goods and merchandise of, the plaintiffs, who were wholesale grocers in said city. That on the 27th day of November, 1888, the plaintiffs obtained judgment in the circuit court of La Crosse county against said Dresen & Fjelstad for the sum of eight hundred and seventy-one and 19-100 dollars ($871.19) and costs of suit, upon an indebtedness incurred by them in said business, and upon which said judgment execution has been issued, and returned unsatisfied. (2) That prior to the 27th day of March, 1883, the defendant Josephine Dresen, acting through her husband, and trusting to his judgment, purchased with her own money the following real estate mentioned and described in the complaint in this action, viz.: Lots three, (3,) six, (6,) and seven, (7,) in block eight (8) of Southeastern addition to the village of North La Crosse, according to the recorded plat thereof, the consideration paid for said premises being the sum of one hundred ninety dollars, ($190;) also, lots four (4) and five (5) in block eight (8) of said Southeastern addition to the village of North La Crosse, the consideration paid therefor being the sum of one hundred dollars, ($100;) also, fractional lot number three (3) of section twenty-nine (29,) in township sixteen (16,) range seven (7) west, in the county of La Crosse, Wis., for the sum of one hundred dollars, ($100,)--and also, acting through her said husband, and trusting to his judgment, loaned and invested certain moneys of her own upon the following mortgages and mortgage securities mentioned and referred to in complaint, viz.: A certain mortgage given by John Bamberger and wife, for the sum of two hundred dollars, ($200;) a mortgage of Henry Erickson and wife, for two hundred fifty dollars, ($250;) a mortgage of John Asslin and wife, for five hundred dollars, ($500;) a mortgage of Louis Perions, for one hundred twenty-five dollars ($125,) recorded in volume 25 of Mortgages, on page 511, in said La Crosse county; a mortgage of John Neagle and wife, for six hundred dollars, ($600;) a mortgage executed by Michael Lambert to Abe Chavalier, for one hundred sixty dollars, ($160;) a mortgage executed by August Freimark and wife to Joseph Fay, for four hundred dollars, ($400.) (3) That the money paid for said real estate and invested in said mortgage securities was derived by said Josephine Dresen from her own separate estate, and no part thereof was received by her from or through her husband. That the title of said real estate and said mortgages was taken in the name of defendant Hubert Dresen for the use and benefit of said Josephine Dresen, and with the express agreement and understanding between said parties that said Hubert Dresen should convey such real estate and assign said mortgages to said Josephine Dresen at any time she so desired. That such title was not taken in the name of said Hubert Dresen for the purpose of enabling him to obtain credit, and said Josephine Dresen had no knowledge that any credit was ever extended either to him, or to the firm of Dresen & Fjelstad, by reason thereof. (4) That on the 27th day of March, 1883, the defendant Hubert Dresen, upon demand of said Josephine Dresen, pursuant to and in consideration of such agreement between said parties, conveyed to her the aforesaid real estate, and assigned to her said mortgages, together with a certain other mortgage mentioned in the complaint, executed by John Asslin and his wife, for the sum of eight hundred dollars, ($800,) and recorded in volume 16 of Mortgages, on page 475, in said La Crosse county, and for which said last-named mortgage the said Josephine Dresen paid full value to said Hubert Dresen, out of her own separate estate, at the time of such assignment. That the consideration expressed in said deed of conveyance was one dollar, love and affection, and that said conveyance and said assignment of mortgages were duly recorded in the office of the register of deeds of said La Crosse county. (5) That, at the time of execution of such conveyance of real estate and assignment of said mortgages from said Hubert Dresen to said Josephine Dresen, the aforesaid firm of Dresen & Fjelstad was indebted to the plaintiffs and other persons with whom they have been dealing in the aggregate sum of about $2,500, such indebtedness to the plaintiffs being about $1,209.42, and at said time the stock in trade of said Dresen & Fjelstad amounted to about $1,500, and their book accounts and credits to the face amount of about $2,500, and that the property then remaining in the ownership of said Hubert Dresen, in addition to his interest in said store, consisted of about $3,000 in cash, in his personal possession, which he took west with him shortly thereafter, and invested in speculation and mining, and which said investment is now understood to be of little or no value. That, before the plaintiffs commenced dealing with said Dresen & Fjelstad, they ascertained, from inquiries and examination of the records in the register of deeds office in said La Crosse county, that the record title of the aforesaid mortgages and real estate was in said Hubert Dresen; and, when plaintiffs commenced giving credit to said firm, they believed said Dresen to be the owner of said real estate and mortgages, and relied upon such apparent ownership in giving the firm credit. (6) That at the time said inquiries were made by plaintiffs, and up to the time they so obtained judgment, the said Andrew Fjelstad had no property subject to execution, except his interest in said store and mercantile business. (7) That plaintiffs did not know of the conveyances and assignments aforesaid made by Hubert Dresen to his wife until suit was brought, in February, 1888, on the notes for which said judgment was obtained. (8) That, subsequent to the time of the aforesaid conveyance of real estate and assignment of mortgages, that said Hubert Dresen and Andrew Fjelstad continued in business as hereinbefore stated, and during all the said time continued to trade and have dealings with the plaintiffs, and had a running account with them for merchandise purchased in said business. That in the course of such dealings with Dresen & Fjelstad they paid to the plaintiffs, upon account, more than the sum owing from them to the plaintiffs at the time such conveyance and assignments were made, but, owing to the continual purchase of new goods, the amount owing upon such account was at no time reduced below the sum of eight hundred dollars, ($800.) (9) That in the year 1884 the defendant Josephine Dresen intrusted with the defendant Hubert Dresen certain moneys of her own to be invested in the purchase of real estate, and loaned upon mortgage securities, and that said Hubert Dresen, as agent for said Josephine Dresen, invested said money in the purchase of the following described lands and premises mentioned in the complaint, viz.: Lot number one (1) in block fourteen (14) of the Northern addition to the village of North La Crosse, according to the recorded plat thereof, the consideration paid therefor being the sum of four hundred eighty-five dollars, ($485;) also, lot number two (2) in block twenty-one (21) of the original plat of the village of North La Crosse, according to the...
