Bleiler v. Moore

Winslow, J. Relationship of the parties to a transaction is not considered in the law as a badge of fraud, and the instruction to that effect was clearly erroneous. Bump, Fraud. Conv. (3d ed.), 56, and cases cited. Relationship is simply a circumstance proper to be shown, and which, when shown, calls for closer scrutiny and clearer explanation of the transaction. The exception taken to this instruction seems to us entirely sufficient. It is true it is taken to the whole sentence, but the sentence is entire, the latter part depending upon, and manifestly intended to be considered in direct connection with, the first part. It is said that the exception was not taken until after the term at which the [441] case was tried. The exception is contained in the bill of exceptions, properly certified, and this is conclusive upon this court. Eor another reason this judgment must be reversed. The proof showed that the plaintiff was the owner of the property in question as against all the world'except a creditor of the son who should in a proper proceeding establish the fraudulent character of the transfer by the son. The interest of the defendants in the property ivas simply a special interest, limited to the amount of the execution levies, which the proof showed to be considerably less in amount than the value of the property. Over and above this special interest, the general ownership of the property was in the plaintiff, even if the transfers to him were fraudulent as to creditors. In this case the defendants have obtained an alternative judgment for the value of the entire property, although their special interest is not much more than one third of the value. Upon a new trial the amount of the defendants’ special interest should be ascertained, and only for that amount should they have judgment in the event that judgment is rendered in their favor. Booth v. Ableman, 20 Wis. 21; Farwell v. Warren, 76 Wis. 527. We are ashed by the appellant to reverse the judgment on the ground that the evidence does not sustain the verdict; but we have examined the evidence, and cannot do so. By the Court. — Judgment reversed, and action remanded for a new trial.