Share v. Trickle

• Decision Date: 12 February 1924
• Parties: SHARE v. TRICKLE ET AL.
• Court: Wisconsin Supreme Court

183 Wis. 1

197 N.W. 329

SHARE

v.TRICKLE ET AL.

Supreme Court of Wisconsin.

Feb. 12, 1924.

Appeal from Circuit Court, Green County; George Grimm, Judge.

Action by Edward M. Share against Joseph Trickle, in which Joseph Elmer and Emma Trickle were summoned as garnishees. Judgment for plaintiff, and the garnishees appeal. Reversed and remanded, with directions.

Plaintiff secured a judgment for $9,000 and interest against defendant Joseph Trickle on a note which he had been forced to pay at maturity. Thereafter defendants Emma Trickle, wife of the principal defendant, and Joseph Elmer, brother of Emma Trickle, were garnished.

Joseph Trickle was the owner of a 230-acre farm in Green county. Upon the security of two mortgages upon this land he borrowed $36,000 and invested it in Texas lands. On March 19, 1920, he borrowed $9,000 on the note above mentioned, payable in one year. Plaintiff signed this note as accommodation maker.

On February 28, 1921, Joseph Trickle sold his farm to one Haldeman, the consideration being $65,000 for the farm and $15,000 for the personal property. Haldeman assumed the mortgages for $36,000, agreed to give a mortgage for $17,000, and paid the balance in cash. It appears that all the cash involved was immediately applied to certain of the debts of Joseph Trickle.

Emma Trickle refused to sign the deed to Haldeman unless the mortgage for $17,000 was made payable to her. It was accordingly so made. Thereafter, on March 8th, Emma Trickle assigned this mortgage to her brother Joseph Elmer. Joseph Trickle, after the sale of the farm and the payment of the debts above referred to, had no property except the land in Texas, which was of little value.

It appears that, several years previous to the making of the mortgage to the wife, she had loaned her husband $2,500, which with interest amounted to $3,100, and that none of this amount had been paid to her. It also appears that Joseph Elmer had from time to time loaned his sister sums aggregating $2,000, as found by the trial court.

The trial court found that Emma Trickle and Joseph Elmer had general knowledge of Joseph Trickle's financial affairs, and that at the time of the sale of the farm Emma Trickle knew of the $9,000 indebtedness to plaintiff. The court further found that $17,000 was largely in excess of Emma Trickle's inchoate dower interest in the lands sold, and that the alleged consideration for the execution of the mortgage to her was not a fair consideration in law, and that the transfer of this mortgage to the wife left Joseph Trickle insolvent.

The trial court found as conclusions of law that the transfer of the mortgage to Emma Trickle, and the assignment by her to Joseph Elmer, were void as to plaintiff, and that plaintiff was entitled to judgment transferring to him an interest in the $17,000 mortgage equal to the amount of his judgment against Joseph Trickle. Judgment was ordered accordingly.

Other facts will be stated in the opinion.W. H. McGrath, of Monroe, and Jeffris, Mouat, Oestreich, Avery & Wood, of Janesville, for appellants.

R. J. Grode, of Monroe (Rix & Barney, of Milwaukee, of counsel), for respondent.

JONES, J. (after stating the facts as above).

[1] Counsel for defendants urge that the court erred in finding that the defendants had general knowledge of Trickle's transactions and of his indebtedness to the plaintiff and others and of his involved financial condition. A special objection is made to the finding that they knew of the note for $9,000 which was to become due soon after the execution of the deed and mortgage on February 28th.

There is undoubtedly some confusion in the testimony on this point. It is clear that Mrs. Trickle had a conference with Mr. Durst, cashier of one of the banks at Monroe, and that at this conference the financial condition of her husband was discussed. Durst testified that in this conference there was discussion as to the advisability of signing the deed to the farm, but there was considerable uncertainty in his testimony on the question whether this conference was before the $9,000 note became due. Mrs. Trickle testified that she did not know of the $9,000 note until told by Mr. Durst. There was also considerable confusion and inconsistency in her testimony on this subject. In addition to the testimony of these two witnesses there were various circumstances attending the transactions of February 28th which might be properly considered as bearing on this subject.

The court saw the witnesses and heard their testimony. We cannot say that the findings on this subject were not sustained by the evidence. We also consider that the finding on this subject as to the defendant Elmer should stand.

[2] The finding that the transfer of the $17,000 mortgage to Mrs. Trickle left her husband wholly insolvent is also assigned as error. It is undisputed that after paying his general debts other than the $9,000 note there was left from the proceeds of the sale only $17,000 for which the note and mortgage here involved were given. Trickle testified that after turning over the mortgage he had not a dollar, except the Texas lands. He owned, it is true, the Texas lands, and at the trial he testified that on the 28th of February, he believed them to be of considerable value, but at the time of the trial his information was that it was of no value, “hardly worth bothering with.” Evidently the Texas lands were not available for the payment of the $9,000 note soon to become due.

We do not think that the finding of the court on this subject should be disturbed. In this connection the following statute has an important bearing:

“Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration.” Section 2320-4, Stats.

[3] Counsel for defendants earnestly contend that a fair consideration was paid for the $17,000 mortgage. The following is the statute on this subject under the Uniform Fraudulent Conveyance Act:

“Fair consideration is given for property, or obligation,

(a) When in exchange for such property, or obligation, as a fair equivalent therefor, and in good faith, property is conveyed or an antecedent debt is satisfied, or

(b) When such property, or obligation is received in good faith to secure a present advance or antecedent debt in amount not disproportionately small as compared with the value of the property, or obligation obtained.” Section 2320-3, Stats.

On this proposition they urge that Mrs. Trickle had a perfect right to refuse to sign the deed and a right to receive consideration in the event that she consented to release her homestead and dower rights; that after deducting the amount of the mortgages, $36,000, there remained an equity of $29,000. The value of the homestead was proven to be $5,000. It is contended that Trickle and his wife had the undoubted right to hold the homestead or the proceeds under the exemption laws, and that creditors were not concerned as to the manner of its disposition.

It is undoubtedly true that if creditors had levied on the land owned by Trickle the homestead would have been exempt. If he had conveyed the homestead to his wife before a levy, the transfer could not have been successfully attacked. She could then have conveyed it and given good title. The evidence shows that Mrs. Trickle refused to sign the deed unless she received a consideration therefor.

It is argued by plaintiff's counsel that the homestead interest of Mrs. Trickle was contingent only and too uncertain to be treated as a consideration. Bu...