Marston v. Dresen

Wihslow, J. The first contention of appellants is that the findings of the circuit court as to the possession of separate estate by the wife and as to the investment thereof in the real and personal property in controversy are contrary to the weight of the evidence, and that, on the contrary, the evidence shows that all of such property was. purchased by the husband with his own moneys; and they say that the testimony as to the sources and origin of the wife’s alleged separate estate is absolutely incredible. If this contention be well-founded, then the judgment manifestly cannot be-sustained, because in a contest of this nature between the wife and .the creditors of the husband, where the wife claims title to property by transfer direct from her husband, the wife must first establish the fact by satisfactory and clear evidence that she had a separate estate which she used in acquiring the property. Gettelmann v. Gitz, 18 Wis. 439. It must be admitted that the wife told a very remarkable story as to the acquisition of her alleged separate estate. This story was, in substance, that she came to this country from France in 1868,— she being then twenty-five years of age,— with her father, mother, one brother, and two sisters; that her father taught school and had land in France; that he brought to this country 30,000 to 35,000 francs in gold, which she testifies was sewed up in the clothes of her father and mother and herself. This money, ■ she alleges, was changed to paper when they arrived in this country, at a premium of from forty to fifty cents. Of this money, 1,400 francs, she says, was her own, willed to her by her godmother, one Christina Staley, and given to her father to take care of. ' The family went first to Mani539 towoc, where she says the father bought a house and lot for $2,200. After living at Manitowoc a few months, he moved with the family to St. Mary’s Ridge, Monroe county, and soon bought eighty acres of land for $1,600, and started a saloón, grocery, and tavern, besides teaching school for two winters. This $1,600 was loaned to the father by Nicholas Staley, Josephine's uncle, although the father still had the money he had brought from the old country, un-invested. In 1810 Josephine married the defendant Hubert, who was then working on a railroad, and left home and lived thereafter in La Crosse, and immediately began to buy lots with money which she says her father gave her, in sums running from $100 to $350, during the years from 1870 to 1874. In 1874 her father sold out the place at St. Mary’s Ridge, and came to La Crosse, with his wife, and commenced to live with Josephine, and continued to live with her until his death in 1886. He gave Josephine, as she testifies, $500 as soon as he came to live with her, and also other sums on subsequent occasions, which she invested in real estate or mortgages. All of these investments, prior to March, 1883, amounted to about $3,000; and she testifies that in all cases she gave the money to her husband with the understanding that he was to invest it and manage it in his own name and transfer the property to her when she so desired. It appears that Hubert managed the property and dealt with it in many ways as if it were his own. Hubert was a railroad brakeman when married, at $45 or $50 a month, and continued to work for the railroad until 1880, when he was getting $60 to $70 a month, and supported his family. In 1880 he went into business with Ejelstad, putting in at first $680 as capital, and in 1884 about $300 more. Ejelstad was the manager of this business. He fully corroborates his wife as to her advances of money with wThich he purchased the real estate and mortgages in question. Both husband and wife testify [540] that, in 1883, Dresen determined to go west, and before going his wife demanded the transfer to her of the real and personal property which her .money had bought, and the transfers were made. Testimony was given tending to-show that both Dresen and the firm of Dresen & Ejelstad were perfectly solvent at this time, and the circuit.court so found, with which finding we agree. ' Now, as we have said,.this story .is in many respects remarkable, but we certainly are not prepared to say that it is incredible. More remarkable instances of the secretion of money come to light every day than the one which is here detailed. It frequently happens that people in the class of life to which these people evidently belonged have an abnormal distrust of banks and of investments of all kinds, and keep their money uninvested, as Josephines father is alleged to have done in this case. If evidence is to be always disbelieved because the story told seems remarkable or impossible, then a party whose rights depend on the proof of some fact out of the usual course of events will always be denied justice simply because his story is improbable. Such is not the rule. A remarkable and exceptional state of facts may be satisfactorily proven, and if so proven a court cannot refuse belief simply because it is out of the usual course of events. The circuit court, after hearing all the evidence, believed the defendants’ statements to be true; and we cannot, after careful reading of the evidence, say that his finding in this respect was wrong, and we concur therein. The circuit court also found that none of the conveyances or transfers attacked were made with intent on the part of either of the defendants to defraud the plaintiffs or any creditor of Hubert, and such is also our conclusion from the evidence. It being, then, satisfactorily established that the wife had a separate estate with which all the property in question was bought; that title to the property was taken in the [541] husband’s name with the understanding that he would convey to his wife when she desired; and he having conveyed when solvent and without fraudulent intent on the part of either, — no reason is perceived why the transfers should not be upheld as against the creditors of the husband. But another contention is made by plaintiffs at this point which requires notice. The fact was, as the circuit court found, that before the plaintiffs commenced to deal with Dresen & Fjelstad they learned, by examination of the records, that the title to said real estate and mortgages was in Hubert Dresen, and that they relied on such apparent ownership in giving him credit, and that they did not know of the transfers from Dresen to his wife until they brought suit on the firm notes'in February, 1888. The court also found, as the fact seems to be, that Josephine had no knowledge that credit was extended to her husband or to the firm on the faith of such apparent title in her husband, and did not put the title in his name for any such purpose. Upon these facts the contention is made that Josephine is now estopped from claiming ownership of the property, and the doctrine of the case of Hopkins v. Joyce, 78 Wis. 443, is relied upon. In the case last cited the wife’s property was put in the husband’s name for business convenience, and the husband represented, for the purpose of gaining credit, that he owned such property, and credit was extended to him on the faith of that representation. It was held (the husband having no other property) that the wife was estopped, as against the creditor so misled, from asserting her equitable title. That case differs from this in the very material fact that there was in that case an actual fraudulent misrepresentation, which the' wife had put it within the power of her husband to make, and upon the faith of which (the husband having no other property) the creditor extended the credit; whereas in this case there was no representation made by any one, and the husband [542] made the conveyance while entirely solvent. True, the records showed title in the husband, and the plaintiffs relied on that showing; but neither of the defendants knew that plaintiffs relied thereon, and had plaintiffs applied to Dresen for information it may well be that he would have informed them of the condition of the equitable title. It does not appear, to use the language of Chief Justice Mae-shall in Sexton v. Wheaton, 8 Wheat. 229, that the wife was “ herself the instrument of deception,” or that she “ contributed to its success by countenancing it.” We are referred to no case which carries the doctrine of estoppel so far as the appellants contend it should be carried in this case, and we decline to do so. So far, in this opinion, we have discussed questions relative to the validity,of the transfers of March, 1883. Much that we have said applies with equal force to the conveyance of February, 1886. So far as the facts relating to the last-named transfer differ from the facts surrounding the conveyance of 1883,, we agree with the conclusions of the circuit court, and detailed discussion thereof is unnecessary. It follows from what has been said that judgment for the defendants was rightly rendered. By the Court.— Judgment affirmed.