Mehlhop v. Pettibone

• Decision Date: 07 February 1882
• Parties: MEHLHOP v. PETTIBONE AND WIFE.
• Court: Wisconsin Supreme Court

54 Wis. 652

11 N.W. 553

MEHLHOP

v.PETTIBONE AND WIFE.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from circuit court, Waukesha county.

The defendant Bronson Pettibone, being a merchant at Dubuque, Iowa, and indebted to the plaintiff, Mehlhop, in the sum of about $1,500, and having an undivided two-thirds interest in 160 acres of land in Waukesha county, Wisconsin, conveyed the same to his wife, Eveline, March 29, 1879, and at the same time took from her a deed of the homestead in Dubuque, upon which they then resided, and had for many years, and which was of the value of $2,700. July 10, 1879, Bronson Pettibone made an assignment of all his property, both real and personal, (except the homestead and the Waukesha lands so conveyed to his wife,) for the benefit of his creditors. July 21, 1879, the plaintiff brought suit against Bronson, in the circuit court for Milwaukee county, upon his indebtedness against him, and attached the Waukesha lands so conveyed to Eveline, and October 10, 1879, recovered and docketed judgment therein for $1,661.53, and, upon filing a transcript thereof with the clerk of the circuit court for Waukesha county, issued an execution thereon, and levied upon the land so conveyed to Eveline as the property of Bronson, and thereupon commenced this suit in aid of that execution, and to have the deed from Bronson to Eveline set aside and declared fraudulent and void as against the plaintiff, and to have the judgment decreed to be a lien upon the lands, and to have the same, and the interest which Bronson had therein prior to March 29, 1879, subjected to the payment thereof the same as though the deed to Eveline had never been made. Bronson and Eveline each separately answered, and, upon the trial, the court found the above facts, and that Bronson was insolvent when he so conveyed to Eveline, and also when he made the assignment; that the object and design of Bronson, in conveying to Eveline, was to place the Waukesha lands beyond the reach of his creditors; that neither that conveyance nor the one from Eveline to him was made in pursuance, or in execution, of any agreement of exchange between them, but both were made by Bronson for the purpose stated; and that Eveline joined therein at the simple request of Bronson, and solely to comply with such request; and that the Iowa homestead (except a small portion thereof) was exempt from execution, and beyond the reach of Bronson's creditors; that the conveyance from Bronson to Eveline was void as against the plaintiff, but that Eveline should be allowed an equitable lien thereon to the amount of $500, in consideration of an equal value of land not exempt conveyed by her to Bronson. From the judgment entered thereon this appeal is brought.

Jenkins, Elliott & Winkler, for respondent.

D. H. Sumner, for appellants.

CASSODAY, J.

By the statute of Iowa, in evidence, a married woman may receive grants or gifts of property from her husband without the intervention of trustees, and may convey her interest in real estate the same as other persons. Sections 1192, 1207, Iowa Code. Section 2206 of their Code also provides that “a conveyance, transfer, or lien, executed by either husband or wife, to or in favor of the other, shall be valid to the same extent as between other persons.” See Blake v. Blake, 7 Iowa, 46;Shields v. Keys, 24 Iowa, 298. Such being the law of that state, there can be no question but what Mrs. Pettibone had the legal capacity to convey the Dubuque lots to her husband. See Jones v. Brandt, 10 N. W. REP. 854. By that conveyance she divested herself of all title in those lots, valued at $2,700, and vested the same absolutely in her husband. This being so, there can be no question but what she absolutely parted with a full and adequate consideration for the Waukesha lands purporting to be conveyed to her by her husband. Did she get title thereto by that conveyance? The land was in Wisconsin. She and her husband, at the time of the conveyance, were domiciled in Iowa. The agreement for the exchange of lands and the deeds were made and delivered in Iowa. Is the giving and taking of the deed to the Waukesha lands to be governed by the law of Wisconsin or Iowa? If the law of Iowa is to control, then the statute of that state clothed her with the legal capacity to take title directly from her husband, and the same would be valid at law. Counsel for the appellant insists that, as all transactions took place in Iowa, the laws of that state must control in determining the validity of the acts of the parties, and several cases in this court are cited in support of the contention. None of the citations, however, seem to meet the question here presented. That question is whether the laws of Iowa, removing the disability of husband and wife in regard to their making conveyances to each other valid at law, is limited to conveyances of lands in Iowa, or extends to any lands owned by either in any state. In other words, does the disability to contract with or convey directly from one to the other, imposed by the laws of some states upon its citizens, extend to those outside of its limits, whenever they attempt to convey lands within its limits? Is the capacity of the parties, as well as the formal extension and validity of the conveyance, to be governed by the law of the place where the land is situated? The question is an interesting one, but as it was not discussed, and its determination is not essential to this decision, we refrain from considering it at this time. The respondent's contention will appear in its most favorable light by assuming, for the purposes of this case, that the laws of Wisconsin must control. It has frequently been held by the court that a deed based upon an adequate consideration, directly from the husband to the wife, is good in equity. Putnam v. Bicknell, 18 Wis. 351; Hannon v. Oxley, 23 Wis. 519;Beard v. Dedolph, 29 Wis. 136;Fenelon v. Hogaboom, 31 Wis. 172;Carpenter v. Tatro, 36 Wis. 297;Dayton v. Walsh, 47 Wis. 118; [S. C. 2 N. W. REP. (N. S.) 65;] Horton v. Bell, 4 Chi. Leg. N. 105;S. C. 10 N. W. REP. 599. There would seem to be no good reason why contracts, when bona fide, made for such conveyance, based upon a valuable and adequate consideration, should not be specifically enforced in equity. 1 Bish. L. M. W. § 719; Livingston v. Livingston, 2 Johns. Ch. 537;Wolfe v. Ins. Co. 39 N. Y. 31;Hunt v. Dupuy, 11 B. Mon. 285.

In Hannon v. Oxley, supra, it was held that “such a deed cannot be impeached in equity, by heirs, on the ground that it was made in consideration of property of the wife which belonged in law to the husband.”

In Beard v. Dedolph, supra, this court went still further, and held that where a wife had a separate estate, and in exchange for a part of it took a note directly from her husband, and payable to him, she thereby, and as incident to her power to contract with reference to her own estate, acquired a good title to the note at law.

Fenelon v. Hogaboom, supra, was an action for unlawful conversion, but the chattel mortgage from the husband directly to the wife was held good at law. Whether the same rule would maintain in case of real property it seems unnecessary here to determine, for this is a bill in equity, and, the wife having parted with full consideration, the defence is certainly equitable, and must prevail unless...