Bank of Commerce v. Fowler

Pifnet, J. 1. The case wholly fails to show any ground upon which the plaintiff could have any relief in respect to the conveyance to Fowler by the judgment debtor, W. E. Moran, and his wife, of their homestead, which they occupied at the time as such. The evidence shows that there was secured to Mrs. Moran, by a contemporaneous written agreement from Fowler, an option to become the purchaser of the premises in case he should offer to sell the same, and also, in case he should make a sale, that the surplus, after the payment of the $2,500 mortgage and the indebtedness of $1,396.09 to the bank, should belong to her; but, as the property was exempt as a homestead, it is impossible to hold that the disposition thus made of it, with the reservation to Mrs. Moran of the right to repurchase it and, if sold, of a contingent interest in the proceeds of the sale, would render the transaction void, even if colorable or if it amounted in effect to a voluntary assignment for the benefit of creditors. They had a right to sell and convey their homestead in any way or for any purpose they saw fit. It cannot be predicated of a sale and conveyance or other disposition of a homestead that it is fraudulent and void as against creditors. Dreutzer v. Bell, 11 Wis. 114; Pike v. Miles, 23 Wis. 164; Hibben v. Soyer, 33 Wis. 319; Rozek v. Redzinski, 87 Wis. 525. [244] The portion of the judgment appealed from by the plaintiff, the Bank of Commerce, is therefore affirmed. 2. The appeal of the garnishee Fowler involves the question whether his title to the pile driver, scow, and its belongings, which the evidence tends to show was built for and belonged to W. E. Horan, was acquired by Fowler in good faith, under the Brown mortgage, or whether he procured and held it for the benefit of and in collusion with the judgment debtor, W. E. Horan, in order to protect it from the claims of his creditors. The circuit court found in favor of the latter contention. As the question involved is one of fact merely, and the circuit court heard the elaborate examination of the garnishee Fowler, and possessed advantages for a correct determination of the issues not afforded to us, we will not enter into a discussion of the evidence. It is enough to say that we think the evidence sufficiently shows that the judgment debtor, W. E. Horan, owned the property in question in November, 1893, subject to the debt secured thereon of $300 to Brown, and that Fowler, at the request of Horan, took a transfer of the property, with the intent of securing and protecting it, in his hands, for the use and benefit of W. E. Horan and his brother, G-. H. Horan, as against the claims of their creditors, and particularly against the claims of the creditors of W. E. Horan. The bill of sale of the pile driver, scow, etc., from Brown to Fowler, the garnishee, was signed by W. E. Horan & Oo. and G-. H. Horan as well. It appears that there was some claim that W. E. Horan and G-. H. Horan had been partners under the name of W. E. Horan & Oo., but the evidence tends to show that there was no such relation between them in fact. The garnishee Fowler testified, in substance, that at the time he acquired title to the property, W. E. Horan and Q-. H. Horan were insolvent; that the object of the bill of sale was to enable them to go on with their business; that he tried to help them out, and that it was to protect them; that he supposed they wanted to save the property, and wanted him to [245] buy it of Brown, so some one else would not get it; that the Morans were both in the bank at the time the bill was signed; and that he did not pay G-. M. Moran anything for signing it. The evidence also tends to show that the property cost $1,200, and was really worth much more, but Fowler claimed that his title was absolute, and that he was under no obligation to allow either of the Morans to have it or redeem it. The evidence tended to show that G. M. Moran had no real interest in the property, but was a man without means, and, taken as a whole, upon the question of collusion and fraud between the garnishee Fowler and W. E. Moran, was such as to justify the finding of the circuit court. Ve think that the finding is supported by the evidence, and that there is no preponderance of evidence against it to warrant this court in reaching any different conclusion. It was found by the circuit court that the purchase of the property in question was made by Fowler in collusion with W. E. Moran, with the intent to hinder and delay the creditors of the latter. He has no equities, against such creditors, to be protected for the amount he actually paid Brown for such purchase. Ferguson v. Hillman, 55 Wis. 181, 190. The rule as thus stated has been recognized and adopted, as there shown, by this as well as by other courts, in very many cases cited. And the proceeds of the property, when sold by such fraudulent purchaser, are impressed with a trust in favor of the creditors in like manner as was the property before the sale. Eor these reasons we hold that the judgment of the circuit court was correct. By the Gourt.— That portion of the judgment of the circuit court appealed from by the garnishee Homer T. Fowler is affirmed. Maeshall, J., took no part.