Van Dusen v. Hinz

BaRdeen, J. The testimony in this case seems to sustain the findings of the trial court, and, unless we can say that •there has been some misapplication of legal principles, the judgment should not be disturbed. It is true that the court has found that in the year 1876 the defendant W. F. Him borrowed $2,000 from his wife, and that in 1878 they settled and he then gave her a note for $2,300; also, that in the year 1887 he purchased the property in question for ■$6,000, and applied .thereon the amount due his wife on the [180] note, he paying the remainder of the purchase price. Erom this the appellants argue that the case comes clearly within the lines of Martin v. Remington, 100 Wis. 540, and the judgment herein cannot stand. That was an extreme case,, and the rule stated therein was carried as far as the court, is disposed to go. Nevertheless, we think it was correctly decided upon the facts presented, and which we believe are quite distinguishable from the case at bar. In that case the-husband took the wife’s money and entered into a series of real-estate speculations as her agent, taking the title in his name for convenience. Here the wife loans the money to her husband upon a simple promissory note, which note, bjr the way, seems never to have been delivered up or surrendered. It is claimed that when the property in question was purchased the understanding was that the husband was. to take the title, and deed to the wife at any time she desired it. He held the title for over .seven years. During' this time he treated the property as his own, with his wife’s, consent. He mortgaged it to secure his own debt. He paid the taxes. He represented to others that it was his own property and was worth about $150,000. This information was given plaintiff before he purchased the note which was. finally put in judgment, upon which this action is based. In other words, its ownership was used as a basis of credit, and, as the circumstances show, with the wife’s consent. It was not purchased as the agent of the wife, nor was any assumed trust relation recognized until seven years thereafter, when the husband was insolvent and sought to evade the payment of his debts. In the meantime his wife secures other property, which is sold for $4,500, and she also takes from her husband a claim against the bank he was operating, amounting to $7,000. That she was engaged in an effort to assist her husband in evading his creditors is a fact, that finds ample support in the evidence. The attempted revival of a secret trust after the lapse of so many years is. [181] in itself suspicious. If this trust did in fact exist as claimed, the wife put it in the power of the husband to deal with the property as his own, and to obtain a fictitious basis of credit. To permit her to hold the property now would be a fraud upon those who dealt with him on the faith of his apparent ownership. Hopkins v. Joyce, 78 Wis. 443. There could hardly be a clearer case of estoppel. The rule is that, on account of the great facilities for fraud growing out of the relations of husband and wife, transactions of the character of those in suit will be closely scrutinized. Hoxie v. Price, 31 Wis. 82; Rozek v. Redzinski, 87 Wis. 525. It needs no very strict application of that rule to justify the findings and conclusions of the court below. By the Court.— The judgment of the circuit court is affirmed.