Mehlhop v. Pettibone

• Decision Date: 10 May 1882
• Citation: 12 N.W. 443,54 Wis. 652
• Parties: MEHLHOP v. PETTIBONE AND WIFE.
• Court: Wisconsin Supreme Court

54 Wis. 652

12 N.W. 443

MEHLHOP

v.PETTIBONE AND WIFE.

Supreme Court of Wisconsin.

Filed May 10, 1882.

Opinion on motion for rehearing.

*443CASSODAY, J.

The statement of facts in this case (11 N. W. REP. 553) was necessarily very brief, and merely indicated the view we took of the evidence in consultation, when both points urged for a rehearing were carefully considered; but, perhaps, not as clearly stated in the opinion as they should have been. The statement in the opinion that Mrs. Pettibone “parted with a full and adequate consideration” was, perhaps, in part an assumption. There may not have been a “full” consideration, but we thought then, and think now, that there was an “adequate consideration,” or, at least, that the evidence failed to show that it was so grossly inadequate as to raise a presumption or inference of fraud on her part. It is to be remembered that there was no evidence as to the value of the Waukesha lands, and that the burden of proving fraud was on the plaintiff. It is true, as urged, that Mrs. Pettibone had no inchoate right of dower in the Waukesha lands, and that she did retain an inchoate right in the Dubuque lots while she and her husband continued to occupy them as a homestead. But such occupancy was not necessarily permanent, and there was some evidence tending to show a purpose to move onto the Waukesha property. Of course a vendee is chargeable with such notice as the facts and circumstances within his or her knowledge necessarily imply; but, as stated in the opinion, “there is no evidence to show that the wife was aware of her husband's insolvency, or that he was in embarrassed circumstances, or even indebted to the plaintiff or to any one at the time; but the contrary.” The only circumstance disclosed in the evidence tending to throw any suspicions on the transaction, so far as Mrs. Pettibone is concerned, is referred to in the opinion. From the evidence in the case there seems to be less reason for setting aside the conveyance to the wife here than in the *444recent case of Pulte v. Galler, 11 N. W. REP. 385, where a conveyance to a wife was sustained against the husband's creditors by the supreme court of Michigan.

For these reasons the motion is denied.