Gunn ex rel. Cary v. Blair

By the Court, Cole, J. In this case the circuit court decided that the conveyance made by Gaylord Blair to Dexter G. Clark, on the 12th day of October, 1849, was fraudulent and void, as to the respondent, but as it does not appear that Clark is dissatisfied with this decision ; or at all events, has not appealed from the judgment, we are relieved from any critical examination of the pleadings and proofs, to see whether they sustain the decision of the court upon that question or not. We may remark in passing that from our appreciation of the facts and circumstances, as described in the evidence, we see strong reasons to sustain the views of the circuit court upon this branch of the case; and were we under the necessity of going into this inquiry, it is quite probable that we should also come to the conclusion that that deed was not made, bona jide, and for a valuable consideration; but really in trust for the grantor, Gaylord Blair. — 357 — We think it must be admitted that the circumstances go strongly to support such a presumption, but still, it does not become necessary to decide that question ; for since Esther Blair is the only party who has appealed, we have but to inquire whether she has any good reason to complain of the judgment. Now, assuming that the conveyance from Blair to Clark in 1849 was a valid conveyance, made in good faith, still it is apparent that if Clark subsequently conveyed the property to Wallingford at the procurement of Gaylord Blair, Blair furnishing the consideration, and being in fact the real owner, that then the deed from Wallingford to the appellant, not being executed for any valuable consideration, but only from love and affection, must be held to be fraudulent as to her husband’s creditors. On the contrary should it appear that Wallingford paid for the property out of his own means, and that there was no fraud in the conveyance from Clark to him, then unquestionably he would have the right to convey the property to his daughter for the consideration expressed, and a court of equity would sustain such a transaction. We must therefore, in the first instance, determine whether the purchase made by Wallingford from Clark, was really the purchase of Gaylord Blair, paid for with his means and upon trust for his benefit ? And upon this point we think the testimony shows most clearly and satisfactorily that it was. Wallingford in his answer, states in substance, that he purchased this property of Clark on or about the 18th of May, 1852, paying therefor in cash, $500, and interest upon that sum from the time Clark bought of Blair; and also delivering over to Clark the notes and mortgage which Clark had given to Gaylord Blair in October, 1849, to secure the unpaid purchase money to become due on Clark’s purchase. Walling-ford says that he bought these notes and mortgage of Blair in 1850, amounting to some $6,320, giving to Blair therefor his promissory note, which he paid during the years 1851-’2. — 358 — At the time of this purchase he says that he was worth about $4,000, being money in the hands of one of his sons. This answer being called for under oath was sworn to by Walling-ford. The answers of Blair and wife, which were likewise under oath, gave substantially the same account of the time and manner of Wallingford’s purchase. We shall not further notice them than to say that they entirely fail to convince our minds that Wallingford did buy, or ever possessed the means of buying of Blair, the Clark notes and mortgage, and paying therefor over six thousand dollars. Neither shall we stop to comment upon the answer of Wallingford in respect to this purchase and of the account he gives of his pecuniary responsibility at that time, for the purpose of showing how utterly irreconcilable and inconsistent his statements are in this particular with all the testimony in the case. It appears that at the time Wallingford put in this answer, he was a very old and infirm man, over eighty-five years of age, was a paralytic; and we think it is charitable and humane to suppose that he did not fully comprehend the scope and extent of his answer. He was also examined as a witness on behalf of the respondent, for the purpose of enabling him to disclose where he obtained the means to buy the Clark notes and mortgage. His testimony upon that point is confused, indistinct and unsatisfactory, and goes far to destroy any weight which his answer otherwise might have had. But from other testimony in the case we learn that he lived from 1825 to 1838 in Ontario county, New York; that about the latter year he removed from New York to Michigan, where he resided until about 1850, when he came to Wisconsin to reside with the family of Gaylord Blair. And it further appears from the evidence, that during all this time he was a poor man, had little or no property, and received more or less assistance from his relatives and children. Where then could he have obtained upwards of six thousand dollars, when more than eighty years — 359 — of age, with which to buy and pay for the Clark notes and mortgage ? It is impossible to believe that he could have accumulated that amount of money as the sayings of his labor, and kept it secret from his neighbors and relatives, so as to pass with them for a poor man. This is not pretended. Neither does it seem possible that Wallingford could have obtained such a sum from any person without being able to tell who it was. But not to dwell upon this point, we will only add, that all the facts and circumstances of the case, in our judgment, lead irresistibly to one conclusion, that Blair furnished Wallingford with the notes and mortgage, and with whatever money was paid Clark for the property; and he had the deed made to Wallingford instead of taking the title himself, although he was the real owner. Consequently Blair having paid the consideration for the land, and being the real equitable owner thereof, could not place it beyond the reach of his creditors by having the title conveyed to Wallingford. And for a like reason the appellant paying nothing for the property, took it subject to these same equities, and has no ground of complaint because the circuit court set aside and annulled her deed. It cannot reasonably be supposed that she was not in possession of ample and sufficient information respecting the circumstances of her father, and hence must have known that he had not paid for this property with his own means, but with the obligations and funds which her husband had furnished him; and that her father had taken the conveyance for the sole benefit and ultimate advantage of her husband. These things must have been known to her, since her husband had always remained in possession of the land, even while the title was in Clark, and she must have been fully apprised of the long and still undetermined litigation between the respondent and her husband, which Blair was endeavoring to practically defeat by placing his property beyond the reach — 360 — of the process of the court. We are therefore forced to concur in the judgment of the circuit court, and hold that the several conveyances, from Clark to Wallingford, and from Wallingford to the appellant, were fraudulent and void, as against the respondent in this case. The relief granted in this case by the circuit court was in strict conformity to the first special relief prayed for in the bill; that is to say, that Gaylord Blair and the appellant, his wife, might be directed by the decree of the court to convey the lands described in the bill, to a receiver to be appointed by the court, and that such receiver might be authorized to sell and convey the lands, and out of the proceeds arising from the sale thereof, to pay the amount of the decree set forth in the bill, with costs, to be invested under the direction of the court, in permanent securities, for the benefit of the respondent, &c. The circuit court in effect so ordered. The power of the circuit court to grant such an order or judgment, was not questioned upon the argument by the counsel for the appellant, but it was contended that it was inequitable to grant so summary a remedy. The circuit court in view of all the circumstances of the case, and especially on account of the fraudulent conduct of Gaylord Blair, saw fit to appoint a receiver to sell the property instead of permitting the respondent to proceed to a sale upon the executions already issued; and we are not prepared to say that this was not a very wise and proper exercise of the discretion of that court in the premises. Had not Blair resorted to the conveyances mentioned in this discussion, for the purpose of1 placing his property beyond the reach of any execution which the respondent might issue to enforce her claim, and thus compelled her to file this bill to set aside those conveyances, he might with better grace have insisted that he was entitled to more indulgence and favor from the court. But as it is, we do not think the circuit court erred in depriving him of all benefit of the statute which — 361 — gives the debtor two years to redeem after sale on execution. See Sands et al. vs. Codwise, 4. J. R., 536; The Chatauque County Bank vs. White, 2 Selden, 236, and cases there cited. We are of the opinion that the order or judgment of the circuit court in this case should be affirmed.