Martin v. Remington

• Decision Date: 11 October 1898
• Citation: 100 Wis. 540,76 N.W. 614
• Parties: MARTIN v. REMINGTON ET UX.
• Court: Wisconsin Supreme Court

100 Wis. 540

76 N.W. 614

MARTIN

v.REMINGTON ET UX.

Supreme Court of Wisconsin.

Oct. 11, 1898.

Appeal from superior court, Milwaukee county; George E. Sutherland, Judge.

Action by Emmit V. Martin against Alvah I. Remington and wife. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This is an action in the nature of a creditors' bill, to set aside certain conveyances of real estate made by the defendant Alvah to his wife as frauds upon creditors. The facts were that on the 19th of October, 1892, Alvah, with others, guarantied the payment of a note and mortgage given by a real-estate company upon certain lands in the town of Lake for the sum of $9,000, and the plaintiff thereupon purchased the same. On the 5th of June, 1895, the plaintiff commenced an action of foreclosure of said mortgage, making Remington a defendant, and claiming a personal judgment against him and the other guarantors for any deficiency, and the summons was on that day served upon the defendant Marion, Alvah not being found. Thereafter judgment of foreclosure was duly obtained, and the real estate sold, and on the 2d of February, 1897, the plaintiff obtained judgment for deficiency against Alvah as guarantor for the sum of $8,787.11. Upon this judgment execution was issued and returned unsatisfied, and this action was commenced. On the 5th of June, 1895, being the same day upon which the foreclosure action was commenced, Alvah deeded to Marion a house and lot on Marshall street, in the city of Milwaukee (hereafter known as the “Marshall Street Property”), also certain lots in Kneeland's addition in said city, no consideration for such transfer being paid by Marion at the time. Alvah had practically no other property at the time of the transfer, and the conveyance thus made him insolvent. In 1896, Marion sold the Kneeland's addition property, receiving a mortgage of $6,000 thereon and certain other real estate in exchange, and she made other transfers of such real estate, which finally resulted in her obtaining title to four lots in Cambridge addition, in the Eighteenth ward of the city of Milwaukee, and subject to a mortgage of $3,000 thereon. In October, 1896, she mortgaged the Marshall street property for $3,500. The plaintiff's claim is that the transfers of June 5, 1895, were entirely without consideration and fraudulent as to creditors. On the other hand, the defendants claim that this property was all in fact the separate property of Marion, resulting from an original investment of $1,900, and that it was held by Alvah for convenience only and in trust for her benefit, and that the conveyance thereof was simply made to carry out that trust, with no intent to defraud Alvah's creditors. The evidence further showed that the parties were married in 1887, Alvah then being employed at a salary of $60 per month, and being without property, and that Marion then had $500, which she had theretofore earned. In April, 1889, Alvah arranged with one Stone to buy two lots in a town plat called “Idlewild No. 2,” in the town of Milwaukee, outside of the city limits, for the purpose of building a house and making a homestead thereon. The lots were supposed to be worth $2,000, but were sold to Remington for $1,000, in consideration that he would build a house and live thereon. In payment of the $1,000, Stone took Alvah's note, indorsed by Marion and Mrs. Connolly, her mother. The deed was made out in Alvah's name, and the land was thereupon mortgaged by Alvah and his wife to a third person, with the proceeds of which mortgage and the $500 possessed by Marion the house was built. The $1,000 note was afterwards paid by Mrs. Connolly, as she claims for the benefit of her daughter and as an advancement to her. The evidence does not show that anything was said between the parties as to how or under what understanding Alvah should hold the title to the property, and the fact seems to be that Stone caused the deed to be made direct to Alvah on his own motion. No note or evidence of indebtedness was given by Alvah at any time for either the $1,000 or the $500, nor was any such thing afterwards asked or talked about. The evidence tends to show that Marion, in September, 1890, received $400 from her father's estate, and that it was used in the real-estate transactions hereafter mentioned, and with no arrangement or understanding as to its repayment. In December, 1890, the Idlewild lots were sold for $500 cash, and the equity in five other lots in the same locality. In January, 1891, there commenced a series of real-estate transactions conducted by Remington in his own name by which large profits were made, and Marion claims that the money used in these transactions was all of it either a part of the $1,900 of her separate estate or the fruits thereof. In January, 1891, 10 acres were purchased upon contract in the village of Whitefish Bay and $700 paid thereon, which 10 acres were shortly afterwards disposed of at a profit of $2,340. In January, 1891, two of the Idlewild lots were exchanged for a house and four lots in the village of Whitefish Bay, which then became the homestead of the parties. In July, 1891, $1,000 was paid as first payment upon another 10 acres of land in Whitefish Bay, which, in October, 1891, were sold to a real-estate company, and a second mortgage of $7,500 received by Alvah in payment. In all the transactions before named the title to the premises was taken and held by Alvah, and the mortgage of $7,500 ran to him, and Alvah in fact conducted all the business after consulting with his wife. Alvah held the $7,500 mortgage in his own name on the records until March 29, 1894, when he made and recorded a nominal assignment thereof to one Martz, which assignment was made simply to escape taxation, and on the same day Martz reassigned the mortgage to Remington, such reassignment not being recorded. On the 30th of March, 1894, Alvah signed an assignment of said mortgage to...