Zimmerman v. Bannon

• Decision Date: 16 December 1898
• Citation: 77 N.W. 735,101 Wis. 407
• Parties: ZIMMERMAN v. BANNON ET AL.
• Court: Wisconsin Supreme Court

101 Wis. 407

77 N.W. 735

ZIMMERMAN

v.BANNON ET AL.

Supreme Court of Wisconsin.

Dec. 16, 1898.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by A. G. Zimmerman, as receiver, in supplementary proceedings, etc., against Patrick H. Bannon and another, to set aside a mortgage as fraudulent as to creditors. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

On April 21, 1898, one Blanche E. Palmer recovered a judgment of $5,500 in the circuit court of Dane county against the defendant Patrick H. Bannon, in an action to recover damages for seduction and breach of promise of marriage. An execution was duly issued, and returned unsatisfied. Proceedings supplementary to execution were commenced, which resulted in the appointment of plaintiff as receiver of Bannon's property. At that time Bannon was the owner of a one-sixth interest of 160 acres of land, upon which the Palmer judgment was a lien. A few days prior to the rendition of said judgment, Bannon executed a mortgage thereon to his sister, the defendant Julia Bannon, purporting to secure the payment to her of the sum of $700. The receiver brings this action to set aside said mortgage, claiming that it was without consideration, and was executed for the purpose of hindering, delaying, and impeding the collection of any judgment that might be secured in the pending suit. The defendants answered separately, each denying the fraudulent character of the mortgage, and alleging that it was founded upon a good and valuable consideration. The case was tried before the court, who found the facts substantially as stated, and, in addition, that one 40 of the land was Bannon's homestead; that the mortgage was not executed in compliance with any previous understanding between the parties that it should be executed, but was executed by Patrick on his own motion, and the fact of its execution was then communicated to Julia; that Patrick executed the mortgage for the express purpose of hindering, delaying, and defrauding the said Blanche E. Palmer in the collection of any judgment that she might recover; and that the defendant Julia took the same with knowledge of such purpose and intention, and with the intention and for the purpose of aiding Patrick in such fraudulent intention. Judgment was entered setting aside said mortgage so far as it affected any of the property described except the homestead. Both defendants appeal.

Olin & Butler and Bird, Rogers & Bird, for appellants.

R. M. La Follette, G. E. Roe, and Rufus B. Smith, for respondent.

BARDEEN, J. (after stating the facts).

We are urged to reverse this judgment because the findings are not supported by the evidence. No substantial end will be gained by a review of all the facts tending to support the conclusion reached by the trial judge. A reference to some of the leading facts must suffice. Patrick inherited the property in question from his parents. There were six children. The father died some 36 years ago. The property was held in common, and used for the support of the family. The mother died in 1890. Patrick, Julia, and one or two of the other children lived on the farm, and continued to use it the same as they had done before the mother died. Some time in the spring of 1890, Julia talked of going to Dakota. At this time it is claimed that there was an agreement made between Patrick and Julia which may be best given in the language of the witness Patrick: “Made my share of the farm over to my sister about a week after mother died. I did not and never have executed any writings to my sister making the farm over to her; only this mortgage I gave her. That agreement was made in the spring of 1890. She was to stop there, and keep house for John and me and any of the rest of them that wanted to come home, and I would give her my share of the farm; that is the agreement just as it was made.” The parties remained at the farm, and nothing was done towards carrying out this agreement on the part of Patrick until the execution of the mortgage mentioned. In the spring of 1897, suit was commenced against Patrick, in which large damages were claimed. During the pendency of the suit, he stated to several persons that the plaintiff would never get any of his property, and that he would put it out of the way. After the case had been noticed for trial, he executed and delivered the mortgage to Julia. It is admitted that at the time of the alleged agreement, in 1890, nothing was said as to how long Julia was to stay on the farm, and no value was...