Wheeler v. Single , 62 Wis. 380 ( 1885 )

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. Sec. 3832, R. S., 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 tbe affirmative, it necessarily results that the plaintiff has failed to establish either cause of action. If either of them be answered in the negative, the plaintiff is entitled to some relief. The circuit court determined both •of them in the affirmative, and gave judgment for the defendant. If such findings are correct, so also is the judgment; otherwise, not.

1. Is the deed of 1857 a valid conveyance to James Single of the lands therein described, as against the creditors of the estate of the plaintiff’s intestate? The only evidence of the indebtedness of the intestate before the fall of 1870 is contained in three judgments against him. One of these was in favor of one Morrison, for less than $400, rendered in the circuit eourt March 6, 1856. The record shows that' an execution was issued on the judgment in July of the same year, and that the judgment has been satisfied and discharged; but it fails to show when the same was paid. There is no evidence that it was unpaid in 1857. The presumption is that it was paid before the deed of that year was executed. The second judgment was obtained, in 1858, by one Schafer, against the intestate, one Uline and one Hobart, and was for about $1,600. Hobart testified on the trial that this judgment was obtained on a promissory note made by the intestate and Uline to him, and by him indorsed to Schafer; and he thinks the indebtedness accrued in 1856. One year after it was rendered, $656 was paid on it, and in 1869 it was satisfied in full. It does not appear by whom these payments were made, but Hobart testifies that no part of such payments was made by him. The third judgment was in favor of Little & Baker, against the intestate; was obtained in 1860; and was for a little less than $500. The only proof of it was a transcript from Portage county, filed in the Marathon county circuit court. It does not appear whether this judgment has ever been paid or not, or. that any proceedings were ever had to enforce its collection, or that it is one of the claims allowed against the estate of the intestate. The statute of limitations had run against it before the death of the intestate. There is no legal presumption that this judgment was unpaid in 1870, or that the debt upon which it was founded was contracted before the execution of the deed of 1857.

It will be observed from the foregoing statement that the only debt proved to have been owing by the intestate, at the time when the deed of 1857 was executed, was the Hobart note, upon which Schafer obtained his judgment. There are many circumstances in the case which satisfy our minds that the deed of 1857 was not executed for the purpose of hindering, delaying, or defrauding the parties interested in that judgment. The $20,000 mortgage, executed by James Single to the intestate, was of record. There is no claim that the intestate ever disposed of it or sought to conceal its existence. The mortgage interest was just as accessible to the creditor as the land would have been had it not been conveyed to James. Moreover, Hobart, who stood in the relation of surety to the intestate for the payment of that judgment, testified that in 1859 he examined the records with reference to enforcing the collection of the balance of it, and he there saw the deed of 1859 from James to the intestate, and the record thereof; and that both were then unmutilated, and both included lots 6, 7, 8, and 9, above mentioned. At that time there was nothing to prevent the issuing of an execution upon the judgment, and a sale of those lots to satisfy the same. This was not done; and the failure to do so raises a strong presumption that some arrangement was then made for the future payment of the balance of the judgment. But the most important fact tending to rebut any fraudulent intent in the execution of the deed of 1857 is that the judgment, was afterwards fully paid and satisfied.

In view of the above facts, we are satisfied that the conveyance of 1857 was not made with intent to defraud any then existing creditor of the intestate. We are also satisfied that it was not made with intent to defraud any creditor whose demand has been allowed against the estate of the intestate. There is no evidence that the latter contracted any indebtedness between 1860 and 1870; and it is not satisfactorily proved that he owed anything when the claims allowed against his estate commenced to accrue. Under these circumstances, we think the circuit court held correctly that the deed of 1857 was not executed with any fraudulent intent. This disposes of the first cause of action in the complaint, affecting lot 4, in block 11, adversely to the plaintiff.

2. The remaining question is, Was the deed of 1859, from James Single and wife to the intestate, delivered to him after the descriptions of lots 6, 7, 8, and 9, were erased therefrom? If i|t was, those lots did not pass by the deed, but the title .thereto .remained in James Single. If it was delivered before the erasure, the title did pass to the intestate, and the .subsequent erasure did not divest it.

There is no direct testimony as to when the deed was .delivered, The fact that the intestate controlled the property after the execution of the deed of 1857, and that conveyances thereof by James were made under his direction, Renders if highly probable that he directed the execution of the deed of 1859- If so, the presumption is very strong that the latter d.eed was delivered when executed. We find no testimony in the record which tends to raise a contrary presumption, Ppt, were there no testimony bearing upon the question, the legal presumption undoubtedly is that the deed was delivered at the date of its execution. This presumption, supported as it- is by the testimony above mentioned, must be applied in this case. It must be held, therefore, that the title to lots 6, 7, 8, and 9 passed to the intestate by the deed of 1859. Certainly it was not divested by the erasure, Wilke v. Wilke, 28 Wis. 296; Hilmert v. Christian, 29 Wis, 104; Rogers v. Rogers, 53 Wis. 36.

All of the conveyances through which the defendant claims title to the lots last above mentioned are purely voluntary. No grantee in any of them paid any consideration lor his conveyance. Hence there is nothing in the waj7 of annulling such conveyances.and restoring the mutilated deed and record, so that the title to the lots may be shown to have been in the intestate at the time of his decease, to the end that the same may be made available for the payment of claims allowed against his estate.

The judgment of the circuit court must be reversed; and the cause will be remanded, with directions to render judgment for the plaintiff in accordance with this opinion.

By the Court.— Ordered accordingly. -