Martin v. Remington

Winslow, J. This is a contest between the wife and a creditor of the husband as to property conveyed by the husband to the wife at the time of the commencement of an action by the creditor to recover his debt. In such case, the principle is well established that the wife has the burden of showing, by clear and satisfactory evidence, that she paid for the property out of her separate estate. Le Saulnier v. Krueger, 85 Wis. 214. The reasons for this rule are well [546] stated in Hoxie v. Price, 31 Wis. 82, and the authorities in support of it are cited in Horton v. Dewey, 53 Wis. 410. It is not claimed in the present case that the wife paid anything at the time of the conveyance to her of all the property standing in her husband’s name, but it is claimed that the original property out of which these parcels grew was bought with her money, and that thereby there arose a resulting trust in her favor in all the property to which her husband had -record title, which trust, though not enforceable under our statutes, has now been fully executed by the husband without fraud, and forms a good consideration for the conveyances; citing Hyde v. Chapman, 33 Wis. 391; Karr v. Washburn, 56 Wis. 303; and Begole v. Hazzard, 81 Wis. 274. The facts found by the court seem to bring the case within this doctrine. The court found that the money with which the first parcel of real estate was bought was advanced and paid by Mrs. Remington, or (which amounts to the same thing) by Mrs. Connolly for her daughter’s benefit; that subsequently Mrs. Remington put $500 additional of her own money into the building of the house upon the property, thus paying all the money which was put into this place out of her separate estate; that she afterwards (acting through her husband as agent) traded this property for other property,, receiving some cash, and invested this cash with $400 received from her father’s estate in the speculative purchases which afterwards followed, and which resulted in rapid and handsome profits; and that Mr. Remington invested no money of his own in these transactions, but simply took the titles of the property thus paid for by his wife’s money, or its increment, in his own naipe for convenience in the handling thereof. There was undoubtedly sufficient evidence to support these findings of the court, and these facts clearly bring the case within the ancient rule in equity that where, [547] on the purchase of property, title is taken in the name of one person while the consideration is paid by another, not by way of loan to the grantee, a trust results in favor of the person paying the consideration. Dyer v. Dyer, 1 White & T. Lead. Cas. Eq. *203, and notes. And this doctrine applies where the purchase is made by the husband with the wife’s separate estate as well as where the parties are strangers. Perry, Trusts, § 127, and cases cited. This trust arose by implication of law from the fact of the advancing of the purchase money, and not by virtue of any agreement of the parties. Bartlett v. Pickersgill, 1 Eden, 515; Bigley v. Jones. 114 Pa. St. 510; Boyer v. Libey, 88 Ind. 235. True, it may be shown by parol that the money was advanced by way of a loan or as a gift, and the supposed trust thereby defeated; but we have found no evidence in the present case that would warrant us in overruling the conclusions of the trial court on this question. Therefore there seems no escape from the conclusion, upon the facts found by the trial court, that there would have existed, prior to the passage of sec. 2077, R. S. 1878, a valid resulting trust in the wife in the various parcels of land to’ which the husband held title during the progress of the real-estate transactions shown by the evidence, and which finally merged into the two parcels of land which were conveyed by Eemington to his wife, June 5, 1895. It is true that such trusts are abolished by sec. 2077, R. S. 1878; but it is still held that if the trustee voluntarily carries out and executes the voidable trust by conveying the property, as he is morally bound to do, such conveyance will be founded upon a sufficient consideration, and, in the absence of fraud, will be valid- even as against creditors of the trustee. Hyde v. Chapman, 33 Wis. 391; Begole v. Hazzard, 81 Wis. 274. See, also, Strong v. Gordon, 96 Wis. 476. The trial court has affirmatively found that the conveyances in this case were made in good faith and without [548] fraudulent intent. The evidence is voluminous, and we shall not rehearse it here. While there were circumstances which have a suspicious appearance, and would, perhaps, have justified a different conclusion, we cannot say that the findings are against the weight of the evidence. Nor can it be claimed that there was a mixture or confusion of property of the husband and wife, so as to make the whole liable for the husband’s debts. The findings affirmatively show that it was all the property of the wife, though managed through the agency of her husband, and there is sufficient evidence in support of this conclusion. It is certainly true in this case that the wife’s property has increased very largely and rapidly, apparently through the sagacity and industry of the husband, but this court has not adopted the rule that such increment can be reached by the creditors of the husband. Mayers v. Kaiser, 85 Wis. 382; Ansorge v. Barth, 88 Wis. 553. The final claim made by appellant is that the plaintiff purchased the note on the faith of Remington’s guaranty, relying on his apparent ownership of the $7,500 mortgage and the Lawndale property, thus raising an estoppel .against the wife, as held in Hopkins v. Joyce, 78 Wis. 443. The difficulty with this contention is that the court has found, upon what seems to be sufficient evidence, that the plaintiff did not rely upon such apparent ownership. There are no other questions raised which seem important enough to require attention. By the Court.— Judgment affirmed.