Le Saulnier v. Loew

Lyon, J. We cannot undertake to state the testimony. It must suffice to say that, in our opinion, it fully sustains the findings of the learned county judge. When the deeds in question were executed, the original grantor, John, Loew, who had long been in feeble health, supposed that he was near death. Eor some time previously he had designed to convey all of his property to his wife, and these deeds, together with another instrument transferring to her all of his personal property, were made in execution of such purpose. The deeds were duly and regularly delivered to the respective grantees therein named, by or on behalf of the grantors, and such delivery was intended by John Loew to be unconditional, and to pass the title to the land therein described at once and absolutely to his wife. The mere fact that one object he desired to accomplish was to save the expense and trouble of administering his estate after his death, does not qualify'the delivery or change its legal effect, as the learned counsel for the plaintiff ingeniously argued. Neither is the character of the delivery affected by the fact that Mrs. Loew placed the deeds, after delivery, where her husband, equally with herself, could have access to them. If authority is desired for so plain a proposition, it will be found in the recent case in this court of Rogers v. Rogers, ante, p. 36. On the question of fraud it is only necessary to say, it does not appear that John Loew was indebted to any one when the conveyance to his wife was executed, or that he intended to contract debts thereafter, and there is nothing in the record to raise even a suspicion that he was moved by any fraudulent intent to transfer his little property to his wife. Certainly, the evidence of fraud in this case (if there is any such evidence) is not of that clear and convincing character which alone will [210] justify the court in cancelling the conveyances. Lavassar v. Washburne, 50 Wis., 200, and cases cited. But it was argued that Mrs. Lóew so conducted herself when the note was given to McClellan, that she should now be estopped to assert that she owns the land in question. On the back of the note is a written statement, signed by John Loew, to the effect that he was then the owner of such land. Mrs. Loew was present when the note and statement were signed by her husband, and took part in the conversation preceding the signing thereof. She did not disclose to McClellan (or his agent) that she, and not her husband, owned the land. The note was given for a quantity of material for a wire fence to be thereafter delivered. Both Mr. and Mrs. Loew are Germans, and have but little knowledge of the English language. Mr. Loew evidently made the contract to purchase the wire without much deliberation. Indeed, he testifies that he supposed he was signing a contract to the effect that his son should take a quantity of wire to sell on commission with the privilege of returning all that remained unsold. However that may be, we do not doubt that he was over-reached by a shrewd salesman, and that neither he nor his wife knew that he was representing himself to be the owner of the land which he had previously conveyed to her. Under such circumstances she was not required to assert her ownership, and is not estopped by her failure to do so. By the Court.— The judgment of the county court is affirmed. ORTON, J., took no part.