Faber v. Matz

PiNNey, J. 1. It is objected that the complaint is insufficient, because it does not contain, in form, the averments specified in sec. 1, rule XXyill, of the rules of practice of the circuit court. The allegations required by this rule are not of the substance of the cause of action, which is complete without them. The object of the rule is to guard against fraud and collusion between the plaintiff and the judgment debtor, and to protect the rights of third parties. The want of such an averment might be ground for staying the action or taking the complaint off the files, on the application of a proper party, unless the defect was supplied; but is not ground of demurrer. The complaint states facts from which it is apparent that there is no collusion between the parties, and that the plaintiff was prosecuting the action for the sole purpose of compelling payment and satisfaction of his judgment; and this is a sufficient compliance with the rule. Marston v. Dresen, 76 Wis. 418. 2. The objection that the circuit court had no jurisdiction to entertain an action in the nature of a creditors’ bill upon a judgment of the superior court of Milwaukee county, to enforce its satisfaction out of the property fraudulently conveyed by the judgment debtor, is clearly untenable. This action, however, was commenced in the superior court, and transferred to the circuit court. 3. The proceedings supplementary to execution commenced on the judgment, if still pending and properly pleaded, would not be a bar to this action. The object of the action is to reach property fraudulently assigned and [375] conveyed to a third party, and his rights could not. be adjudged in respect to it save in a plenary action brought by a receiver appointed in the supplementary proceedings. The plaintiff had his election either to obtain the appointment of a receiver in whose name the action- might be brought, or to proceed in his own name under sec. 3029, R. S. Bennett v. McGuire, 58 Barb. 625; Gates v. Young, 17 N. Y. Weekly Dig. 551. 4. The judgment in favor of the plaintiff against the defendant Matz, upon which the action was based, is conclusive as to the validity and justice of-the plaintiff’s claim, and it could not be impeached in this action. Carpenter v. Osborn, 102 N. Y. 552; Decker v. Decker, 108 N. Y. 128. 5. The burden of proof to show that the lot conveyed by the defendant Matz to Dittmar was her homestead was on the defendants, but it is plain from the evidence that this lot was not, and never had been, her homestead, and that the conveyance of it to Dittmar, as well as the assignment to him of the mortgage of $500, were without valuable consideration, and were voluntary conveyances made upon a trust and benefit reserved to the judgment debtor, and constituted substantially all her property not exempt from execution. Under‘such circumstances these transfers .are fraudulent as a matter of law, and upon proof of these facts a trust in the property assigned and conveyed results in favor of the creditors of the defendant Matz, who made them. “ The law imputes fraud to such transactions. A man involved in debt has no right to give away all his property at the expense of his creditors. He must be just before he is generous.” Marston v. Dresen, 76 Wis. 418, 421; Severin v. Rueckerick, 62 Wis. 1; Daskam v. Neff, 79 Wis. 164. That Dittmar had full knowledge of the facts, and that the deed and assignment were fraudulent as a matter of law, whatever may have been the intent of the parties, as against the plaintiff, is very plain. The court [376] could not hesitate to set them aside as fraudulent, and its. judgment to that effect is correct. By the Court.— The judgment of the circuit court is affirmed.