Hibben v. Soyer , 33 Wis. 319 ( 1873 )

Cole, J.

The judgment in this case, we think, is maintainable on two grounds.

Eirst, the evidence shows that the property in question was a homestead when the conveyances charged to be fraudulent in respect to creditors were executed. The circuit court found that the premises were occupied by W. H. Soyer and family for a homestead during all the time from October, 1867, until they were conveyed to the defendant Amelia Soyer in September, 1868, and this finding is fully warranted by the testimony. This being so, the property was not liable to sale on execution, and could not be reached by creditors for the payment of their debts, and a conveyance thereof by tbe debtor cannot be considered fraudulent as to creditors. This was so decided in Dreutzer v. Bell, 11 Wis., 114, and Pike v. Miles, 23 id., 164.

But it is said that this defense, that the property was a homestead, was new matter, and could not properly come in under the answer, which was a general denial merely. We cannot see why that defense cannot be made. The foundation of the plain tiff :s case is, that the conveyance to the defendant, Amelia Soyer, is fraudulent, and that the property should be subjected to the payment of his judgment. This the defendant denies, but asks no affirmative relief. The plaintiff’s action is defeated when it appears that the property was a homestead and by law exempt from sale on an execution.

It is also insisted that this defense is a personal one, which the debtor alone could make. A similar question was presented in Winterfield v. The Milwaukee & St Paul R’y Co., 29 Wis., 589, but it was there held that a person summoned as a garnishee might answer that the property in his hands was exempt by law from seizure on attachment or execution, and thus defeat the garnishee suit. The principle of that decision disposes of the objection that the defendant Amelia Soyer could not rely upon the defense that the property conveyed to her was the homestead of W. H. Soyer and family. See also Main v. Bell, 27 Wis., 517, and Connaughton v. Sands, 32 Wis., 387.

But to our minds quite as satisfactory a ground as any upon • which to place the affirmance of the judgment is, that the evidence shows that Amelia Soyer was a bona fide purchaser of the property, having paid a full consideration therefor. The testimony establishes the fact that W H. Soyer had sold his mother’s real estate in Fentonville, Michigan, had received the consideration money therefor, and had appropriated a portion of that money to purchase the property -in question. It is true, he testifies, that he purchased that property in Michigan with his own means,' and that the title was conveyed to his mother for his use and benefit. In view of the matters appearing in this record affecting his character for truth and honorable conduct, we are constrained to say that his statements are entitled to but very little if any credit. The transaction of causing this property to be conveyed to Diantha Worcester by fraud and imposition practiced upon his mother, shows him to be a very depraved and dissolute man. And the evidence shows that, with other vices, he is untruthful. No reliance can therefore be placed upon his statements under oath. But from reliable testimony in the case we feel warranted in the conclusion that the Eentonville property actually belonged to Mrs. Soyer, and that when it was sold, the purchase price, amounting to some $3,500, went into the hands of her son, W. H. Soyer. If this was the case, then it is very clear that W. H. was largely indebted to his mother when his wife conveyed the property by the deed of September 2, 1868. and there is nothing to impeach the good faith of that conveyance. No presumption can be made that it was fraudulent either as to existing or subsequent creditors of W. H. Soyer.

By the Court. — The judgment of the circuit court is affirmed.