Stanhilber v. Graves

• Decision Date: 16 November 1897
• Citation: 73 N.W. 48,97 Wis. 515
• Parties: STANHILBER v. GRAVES ET AL.
• Court: Wisconsin Supreme Court

97 Wis. 515

73 N.W. 48

STANHILBER

v.GRAVES ET AL.

Supreme Court of Wisconsin.

Nov. 16, 1897.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Suit by Julia L. Stanhilber, as administratrix of the estate of John F. Stanhilber, against E. F. Graves and Ebenezer James. Decree for defendants, and plaintiff appeals. Affirmed.

This is an action to set aside a conveyance of land as fraudulent against creditors. The plaintiff's decedent recovered a judgment against the defendant Graves for $1,125.16, which was docketed May 2, 1892. On the 14th day of the same month, a deed from the defendant Graves to the defendant James of all the land which the defendant Graves owned in the county, being about 10 acres, and including his homestead, and being within the city of Oshkosh, was put upon record. The deed was dated April 25, 1892. This action is brought to set aside that deed as fraudulent, and, for that reason, void as against the plaintiff's judgment. The plaintiff also claimed that by an attachment in her action against Graves, levied upon this land before the date of the deed, she had obtained a lien upon the land which was prior and paramount to the deed. The only evidence to support this claim was what purported to be a copy of an attachment, with the sheriff's indorsement of a levy, which was found on file in the office of the register of deeds. No original attachment was produced in evidence or shown to have been issued. The issue on which the case was tried was the genuineness and good faith of the deed. The court found that the deed was genuine, and that it was executed, in good faith, on the day of its date, on sufficient consideration, and without knowledge, on the part of James, of the pending of plaintiff's action against Graves or of his insolvency. The court found that the premises were worth $5,500; that Graves owed James $1,140; that James canceled this debt, gave Graves $360 in money, and assumed and paid a prior mortgage upon the premises of $1,000. On these findings, a judgment for the defendants was entered, from which the plaintiff appeals.Eaton & Weed, for appellant.

Felker, Stewart & Felker, for respondents.

NEWMAN, J. (after stating the facts).

The appellant claims that the trial court erred (1) in its findings of fact; (2) in its conclusions of law; (3) in rejecting evidence offered by the appellant; (4) in not finding that the plaintiff's judgment was a lien upon the land prior to the deed; and (5) in giving judgment for the respondents.

1. The appellant urges that the evidence tended to prove a state of facts the precise contrary of the facts found by the trial court. And therein seems to lie the infirmity of the appellant's case. The evidence only tends to prove a state of facts in conformity with her theory of the case. It does not absolutely prove it. So the case falls within the rule, so firmly established in our jurisprudence, that this court will not review the findings of the trial court, on controverted issue of fact, with a view to determine, by a nice discrimination, on which side of the issue the evidence preponderates; but it will affirm the judgment where the finding is fairly supported by competent evidence, and is not plainly contrary to its preponderance. Guetzkow Bros. Co. v. Andrews, 92 Wis. 214, 66 N. W. 119;Momsen v. Plankinton (Wis.) 71 N. W. 98; Racine Water Co. v. City of Racine (Wis.) 72 N. W. 350. So, unless some error has intervened, the judgment must be affirmed.

2. The court's conclusion of law follows inevitably from the facts found.

3. When the defendant had the case for rebuttal, she called as a witness one Kennedy, a lawyer. He was shown a mortgage upon the same land which had been executed by Graves to James, in October, 1891, to secure the $4,000 debt which it was alleged that the deed had been given to pay. The witness had stated that the mortgage had been executed in his presence. He was then asked, “There is no reference, is there, to a note in there?” This was objected to, as not being properly rebutting testimony, and because it was a privileged communication: and the objection was sustained. The appellant claims that, by this ruling, she was “precluded from showing that the mortgage and deed were not executed when they purported to be.” Certainly,...