Skinner v. James

Cassoday, J. A careful examination of the record forces the conviction that the findings of the court are fully sustained by the evidence. This being so, the case must be determined with reference to the facts thus established. Among these facts it appears, in effect, that the defendant Ann Moody James and her husband talked over the making of the purchase of the eighty; that they went together to consummate the purchase; that she handed her husband the $500, to be paid as a part of the purchase price; that they were both' present, January 9, 1860, when the deed was delivered to the husband; and the mortgage on the ■land executed by her and her husband; that she then knew that said deed was executed to her husband; that he had the deed recorded on the same day; that soon thereafter he delivered it to her for safe-keeping; that the deed remained in her custody for eighteen years prior to the deed to her from her husband. Manifestly, the deed of purchase was so taken in the name of the husband with the knowledge and consent of the wife. There is nothing in the case indicating any fraud or mistake in so taking the deed in the name of the husband. This being so, the wife may well be conclusively presumed to have known the contents of the deed at the time it was taken, January 9, 1860. Herbst v. Lowe, 65 Wis. 321; Hankins v. Rockford Ins. Co. 70 Wis. 1 (decided herewith). True, it was found by the court that she always believed that her husband held the title in trust for her; but such belief was always necessarily accompanied with full knowledge on her part of the existing facts stated. She was, during all the time in question, conclusively pre [610] sumed to know the law applicable to the' facts thus within her knowledge. If the facts thus within her knowledge negative the existence of such trust, then her belief that her husband held the title in trust for her was certainly without any foundation. Much wds said on the argument as to a supposed equity in her favor, by reason of the payment of the $500, and the use or trust which would consequently result in her favor at common law. But all “ uses and trusts, except as authorized and modified ” by statute, were abolished in this state before the purchase in question, by what is now sec. 2011, R. S. Had it appeared in the deed that the husband took the title in his name, “ to the use of, or in trust for,” his wife, then there would have been no difficulty in sustaining her right to the land. Sec. 2015. Sullivan v. Bruhling, 66 Wis. 472. But such'is not the fact; and, in construing a like section in the Michigan statute, it has been held that where such purpose is expressed in some other writings, and not in the deed itself, the legal title will not vest in the person for whose use or benefit it is taken. Loring v. Palmer, 118 U. S. 643. Much less would it so vest where there is no such writing, and both parties know all the facts. But our statute goes further, and expressly precludes any use or trust resulting in favor of the wife by reason of her paying a part of the consideration, by sec. 2077,% declaring that “ when a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom, such payment is made; but the title shall vest in the person named as alienee in such conveyance, subject only to the provisions of the next section.” The “ next section ” thus referred to, provides that “ every such conveyance shall be presumed fraudulent as against the creditors of the person paying the consideration, and, wdien a fraudulent intent is not disproved, a trust shall result in [611] favor of sucb creditors to the extent,” etc. Sec. 2078, R. S. Had the judgments in question been recovered against the wife, instead of the husband, prior to such conveyance, a trust might have resulted in favor of such judgment creditor ; but even then, according to the New York decisions under like statutes, no interest, legal or equitable, would have vested in the wife, to which a judgment and execution could have attached, as the statute would merely have imposed “ a pure trust ” in favor of such creditor “ upon the legal estate ” in the hands of the husband, which would have been enforceable in equity only. Garfield v. Hatmaker, 15 N. Y. 475. Of course, the present case does not come within the exception in favor of the creditors of the person paying the consideration mentioned in the last section cited, because this is a creditor of the husband who held the legal title. True, the statute provides that “sec. 2077 shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the Imowledge or consent of the person paying the consideration, or when such alienee, in violation of some trust, shall have purchased the lands so conveyed with moneys belonging to another person.” Sec. 2079, R. S. A struggle has here been made upon the facts, to bring the case, if possible, within the provisions of this last section, in order to relieve it from the effect of sec. 2077, supra; as in the case of Kluender v. Fenske, 53 Wis. 118. But the facts stated negative such contention, and take the case out of that rule. Here it appears affirmatively, as indicated, that the deed was taken in the name of the husband, with the knowledge and consent of the wife, and in her presence; which precluded any violation of any trust imposed in the husband by the wife. It is very clear that the facts bring the case squarely within the provisions of sec. 2077, and the rights of the [612] parties must therefore be determined by it. In the language of this section, substantially, and in accordance with its uniform construction bjr this and other courts, under like provisions, the deed of January 9, 1860, vested the title to the lands in question in the husband, the person named as alienee in such conveyance, with no use or trust resulting in favor of the wife, the person by whom a- part of the consideration was paid. Week v. Bosworth, 61 Wis. 85; Cerney v. Pawlet, 66 Wis. 265, 266. Such title remained in the husband until some time after the rendition and docketing of the judgment against him. By the docketing of those judgments, they respectively became liens upon the separate real estate of the husband, as one of the judgment debtors. Sec. 2902, R. S.; Evans v. Virgin, ante, pp. 159-161. Such liens were not destroyed, nor in any way frustrated, by his subsequent conveyance to his wife. The executions recited the judgments, and the time of docketing them, and were against the real property belonging to the debtors, respectively, on the day when the judgments were so docketed. Id.; sec. 2969, R. S. subd. 1. And the right and title of such judgment debtor, at the time of such docketing, in and to the land in question, was sold to the plaintiff on such executions, and conveyed to him by the sheriff’s deed. Secs.’3016, 3011, R. S. See note to this case in 85 N. W. Rep. 87. — Rejp. It follows that, before the commencement of this action, the plaintiff acquired the legal title to the forty acres of land in question, and the defendants have failed to make out any defense. By the Court.— The judgment of the circuit court is affirmed.