Wheeler v. Single

• Decision Date: 03 March 1885
• Citation: 62 Wis. 380,22 N.W. 569
• Parties: WHEELER, ADM'R, ETC., v. SINGLE.
• Court: Wisconsin Supreme Court

62 Wis. 380

22 N.W. 569

WHEELER, ADM'R, ETC.,

v.SINGLE.

Supreme Court of Wisconsin.

Filed March 3, 1885.

Appeal from circuit court, Marathon county.

This action was commenced in 1883 by the plaintiff, as administrator of the estate of Charles A. Single, late of the county of Marathon, who died in 1880, against the widow of the intestate. It was brought by direction of the county court, pursuant to section 3832, Rev. St., the assets of the estate in the hands of the plaintiff being insufficient to pay the claims allowed against the estate. The objects of the action are (1) to set aside a conveyance of real estate executed by the intestate to his brother, and certain mesne conveyances executed by the brother and his grantees, under which the title to such real estate appears to be in the defendant; and (2) to restore a deed of certain other lands executed by such brother to the intestate, and the record thereof, both of which are alleged to have been mutilated after delivery of the deed. Two causes of action are stated in the complaint. The first relates to lot 4, in block 11, in the city of Wausau, and the other to lots 6, 7, 8, and 9, in Single's addition to that city.

The facts, as they appear from the pleadings, proofs, and findings of the court, are as follows: In the year 1857 the plaintiff's intestate, Charles A. Single, and his wife, the defendant, executed to James Single a conveyance, with warranty, of all the real estate owned by the intestate, all of which was in Marathon county. This conveyance included all of the above lots. At the same time, James Single executed to Charles a mortgage on the same real estate, to secure the payment of $20,000. These instruments were properly executed and duly delivered, and soon after execution was recorded in the proper register's office. James paid no other consideration for the conveyance, and never entered into possession of any of the property. At that time Charles was indebted to divers persons. A particular statement of such indebtedness will be found in the opinion. In 1867, James Single and wife conveyed lot 4, in block 11, to Benjamin T. Single, a son of the intestate and defendant; and in 1870, Benjamin conveyed the same lot to the defendant; also, in 1867, James and wife executed a conveyance to two daughters of Charles A. and the defendant,--Josephine and Alice Single,--of lots 6, 7, 8, and 9, before mentioned; and the daughters conveyed the same lots to their mother, the defendant, in 1871. In 1859, James Single and wife executed to Charles A., the intestate, a conveyance of lots 6, 7, 8, and 9, with two other parcels, which are included in the deed of 1857, to James; and the same was duly recorded. Subsequently, the descriptions of the above lots in the deed were erased, and the same descriptions were obliterated from the record; but by whom, or at what particular time, does not appear. Neither does it appear when this deed was delivered to the intestate; but it was found with his papers after his decease. The remaining parcels of land, so conveyed to James Single in 1857, were by him conveyed to the defendant in 1859. Some of the above mesne conveyances were imperfectly executed. Charles A. Single remained in the possession of all the lands conveyed to James in 1857 until his death, and had full control of them. They were assessed to him, and he paid the taxes. He made improvements upon them; even executed conveyances of some of them; and directed the making of the conveyances above mentioned. It does not appear that anything was ever done with the $20,000 mortgage. After the death of Charles A. Single, claims against his estate were duly allowed to the amount of over $4,000. All of such indebtedness accrued after the fall of 1870.

The circuit court found the above facts substantially; and in addition thereto, found that the conveyance of 1857 to James Single, although voluntary, was made in good faith, and without any intent to hinder, delay, or defraud either existing or subsequent creditors of the intestate; also, that the alteration and mutilation of the deed of 1859, and the record thereof, occurred before the deed was delivered to the intestate. Thereupon the court gave judgment dismissing the complaint, with costs. The plaintiff appeals from such judgment.Neal Brown and C. V. Bardeen, for appellant.

Pulling, James & Holway and H. H. Hoyt, for respondent.

LYON, J.

The first cause of action stated in the complaint is to cancel and remove from the records certain conveyances, which are alleged to have been executed in fraud of the creditors of the plaintiff's intestate; and the second is to restore an altered or mutilated deed, and the record thereof. Undoubtedly, these are proper subjects of equitable cognizance; the gravamen of both being alleged frauds, and to remove clouds upon title to land. Section 3832, Rev. St., fairly construed, confers upon the administrator power to bring this action. The controlling questions to be determined on this appeal are: (1) was the deed of 1857, executed by the intestate and his wife, the defendant, to James Single, made in good faith, and without any intent to hinder, delay, or defraud the creditors of the intestate? and, (2,) was the deed of 1859, executed by James Single and wife to the intestate, and the record thereof, altered or mutilated before the same was delivered to the intestate? If both these questions are answered in...