Smith v. Hardy , 36 Wis. 417 ( 1874 )

Lyon, J.

Certain exceptions were taken during the progress of the trial to rulings by the court on objections to tbe admission of testimony ; but these were not argued by the learned counsel for the defendant, and none of them seem to be relied on to reverse tbe judgment. Tbej will not, therefore, be further noticed. This leaves for determination only such questions as are raised by the instructions given to the jury.

The property affected by the action may be divided into three classes: 1. That which it is alleged the plaintiff purchased with money bequeathed to her by her father-in-law. 2. That turned overby her husband to his father, and by the latter (through his agent Allen) to the plaintiff, which was not included in the mortgage, but was so turned over -in place of mortgaged property used by the husband; and 8. The property included in the mortgage, which was, in like manner, transferred to the plaintiff. The instructions applicable to each class will be considered in the above order.

1. The court instructed the jury that if the plaintiff had money which she derived by bequest from her father-in-law, she had the right to use it as she saw fit, and if she, either in person, or by her husband as her agent, purchased any of the property in controversy with such money, for herself to use on real estate belonging to her, the title to such property would be in her and not in her husband. The instruction is in strict accordance with the statute concerning the rights of married women. E. S., ch. 95, sec. 8 (Tay. Stats., 1195, § 3).

2. The instruction applicable to the second class above mentioned is to the effect that, if the substituted property was received by the mortgagee at a fair valuation, and applied on the mortgage, it stands on the same footing, as regards the plaintiff’s title thereto, with the property included in the mortgage. No fault is perceived in this instruction. We think that it states the law correctly.

3. After the learned circuit judge had instructed the jury at considerable length without mentioning the subject of fraud in the execution of the mortgage, and after he had directed them as to the form of their verdict, whether they should find for one party or the other, he concluded his charge as follows:

“ I will add, gentlemen, that if P. W. Smith was indebted to Pis father, that is, if there was an actual, valid, subsisting bona fide indebtedness against him, P. W. Smith, in favor of his father, while his father had the right to exact security for the payment of that indebtedness, and while P. W. Smith had the right, as against other creditors, to secure that debt by a chattel mortgage which would enable his father to hold the property included in that chattel mortgage as security for the payment of that debt; yet if you find from all the evidence in this case that what was done, was done not with the intention, or with the view, or for the object, of protecting the rights of the father of P. W. Smith, but as a mere cover of this property, to keep it away from other creditors of P. W. Smith, in that case the mortgage would not be a valid mortgage.”

It is objected that this is not a correct statement of the law, which declares'that every conveyance of goods, etc., made with intent to hinder, delay or defraud creditors, shall be void as against such creditors. R. S., ch. 108, sec. 1 (Tay. Stats., 1257, § 1). The instruction is to the effect that the following conditions are essential to the validity of the mortgage: 1. That it was given to secure a bona fide debt; 2. That it was given for the protection of the mortgagee ; and 8. That it was not given for the purpose of keeping the mortgaged property from the other creditors of the mortgagor. The fair inference from the instruction is, that if either of these conditions is wanting, the mortgage is invalid; and so we think any juror of ordinary intelligence must have understood it. Hence, the instruction is, substantially, that if the mortgage was given with the intent to hinder, delay or defraud the other creditors of P. "W. Smith, it is void as against such creditors, of whom the plaintiff is one. In this form it would have been unobjectionable. The objection seems to be founded upon a mere verbal criticism of the language employed by the judge. If the counsel for the defendant desired that different language should be used, he should have prayed an instruction framed in accordance with his views.

But it is further objected, that, although the instruction above quoted is correct, still it is contradicted in other portions of the charge. If this is true, it may be fatal to the judgment. It was said in Imhoff v. The C. & M. R'y Co., 20 Wis., 344 (and the same general doctrine has been held by this court in other cases), that “ where erroneous instructions are given for one party, the error is not corrected by giving for the other party instructions explanatory, inconsistent with or contradictory to those first given. The erroneous instructions should be withdrawn from the jury.” (p. 347.)

The whole charge has been carefully examined, and we fail to find in it any instruction that the plaintiff was entitled to recover the mortgaged property in any contingency, unless, the mortgage was free from fraud. It is believed that there is nothing contained in it from which it can reasonably be inferred that the judge intended to give any such instruction. On the contrary, the jury were told that, if the mortgage was invalid, the plaintiff had no title to the property therein described, and, as we have seen, they were further instructed that if the mortgage was executed in fraud of other creditors, it was void.

As to what acts would constitute a valid delivery of the property to the. plaintiff (without which she could not take title thereto by gift), the charge is as follows:

“ As the plaintiff claims title by gift, it is essential to the validity of that title that possession of the property should have been delivered to her, and that she should have taken possession ; but in this case it is claimed that possession was delivered and taken as completely as it could be under the circumstances; and if you find from the evidence that the plaintiff was the owner and in possession of the farm on which the property was, living on such farm with her family as a homestead, and that the property was left with her thereon, you will determine, in the light of these and all other circumstances surrounding the case as shown by the evidence, whether the property was subject to her control and dominion, or whether it still remained subject to the control and dominion of her husband.

“ If the farm was her property, and she occupied the same, she had a right to keep the property thereon ; and if she did so, she exercising control and dominion over it as owner to the exclusion of all right in any other person, that would be possession on her part.”

But it is claimed that the question as to whether the delivery of the property to the plaintiff (if there was such delivery) was followed by an actual and continued change of the possession thereof, was not submitted to the jury. This is alleged to be error. There are two answers to the position. One answer is, that no instruction was asked on that subject. The other is, that there is no proof of any change in the status of the property after the alleged delivery thereof to the plaintiff. The jury must have found a valid delivery thereof to her, and, in the absence of proof to the contrary, the presumption is that it continued in her possession until seized by the defendant.

We think that none of the exceptions to the charge are well taken, and must, therefore, affirm the judgment.’

By the Court. — Judgment affirmed.