State Bank of La Crosse v. Bienfang

Dodge, J. "While the findings as to Schallcrt’s fraudulent intent in procuring conveyance of the described real estate direct to the appellant, Bienfang, and her participation, that the entire consideration therefor was paid by the defendant Schallert, and that said conveyance was made and taken in secret trust for said Schallert, are vigorously assailed, we find, upon examination of the evidence, no clear preponderance against any of them, and therefore must proceed to consider the case upon the assumption that such facts exist. We may say, however, that we find no evidence whatever of any transfer to appellant, Bienfang, of the small amount of personal property mentioned in the land contract, and must therefore conclude that the finding that such transfer was made is unsupported. — 437 — Both the complaint and the judgment evince confusion between the rights of the parties which would result in a case arising under sec. 2320, Stats. (1898), and that arising under sec. 2078, Stats. (1898). The first mentioned of these sections provides for the case of an attempted conveyance by a debtor to a third person, and declares that when such conveyance is fraudulent it shall be void; that is to say, as to attacking creditors at least, that the title still remains within reach of any specific liens unaffected by the conveyance, and the right of each creditor acquiring such lien is the same as if the conveyance had not been made. An execution when levied becomes a lien, and sale thereunder conveys all the interest in the premises which the debtor would have had in absence of such conveyance. Hence the only aid needed from a court of equity is in removing the apparent cloud caused by the fraudulent conveyance. Gilbert v. Stockman, 81 Wis. 602, 51 N. W. 1076, 52 N. W. 1045; French L. Co. v. Theriault, 107 Wis. 627, 83 N. W. 927. On the other band, secs. 2077, 2078, Stats. (1898), provide that a grant to' one person upon a valuable consideration paid by another vests the title completely in the person named as grantee, and no trust results in favor of the person paying the consideration, except that “such conveyance shall be presumed fraudulent as against the creditors of the person paying the consideration and, when a fraudulent intent is not disproved, a trust shall result in favor of such creditors to the extent that may be necessary, to satisfy their just demands.” In the case of conveyances falling under this section, no title, legal or equitable, vests in the debtor, and no lien upon the property can be acquired by the docketing of judgment or levying of attachment or execution, nor can any interest be conveyed by an execution sale. The debtor owns nothing, but the grantee holds the entire title as a trustee in favor of the creditors existing at the time of that conveyance, and in favor of all of them, so that none can acquire preference over any other. The right of such creditors is not against the — 438 — land, but, at tbe suit of all or any one for all, to charge the grantee with a trust, and that only to the extent that may be necessary to satisfy their just demands. Miner v. Lane, 87 Wis. 348, 355, 57 N. W. 1105 ; Blackburn v. Lake S. T. Co. 90 Wis. 362, 365, 63 N. W. 289; Allen v. McRae, 91 Wis. 226, 230, 64 N. W. 889; Brinker v. Brinker, 105 Wis. 231, 81 N. W. 402. The judgment appealed from is substantially such as would be warranted in case of a fraudulent conveyance by Schallert himself. It declares plaintiff’s judgment a lien upon the land and authorizes sale of it on execution, and such was evidently the relief to which plaintiff considered itself entitled in framing its complaint. The findings, however, and more clearly the evidence, negative any such situation. Schallert never owned the land and never conveyed it to Bienfang, but, on the contrary, Bunting did grant and convey the land to Bienfang for a valuable consideration entirely paid by the debtor, and the presumption of a fraudulent intent against creditors declared by sec. 2078 has not been effectively disproved. Eurther, so far as the evidence goes, it indicates that the value of the real estate thus conveyed to Bienfang is largely in excess of plaintiff’s claim, and it also indicates, though perhaps not with great certainty, that there are other creditors of Schallert who were such at the time of the conveyance. Hence the decree adjudging the conveyance to Bienfang void, authorizing the sheriff to sell the property upon execution, and declaring plaintiff’s judgment a lien thereon, thus giving it preference over any other creditors without ascertaining definitely the fact of their existence or nonexistence, is wholly irresponsive to the facts established, and erroneous. The conclusion that the transaction between Bunting, Schallert, and Bienfang falls within sec. 2078, Stats. (1898), is not averted by the fact that before the conveyance Schallert had obtained the right to purchase in his own name by written agreement. It is probably true that, under an ordinary — 439 — land contract wbicb contemplates a presently executed sale, although the payment of part of the consideration and the actual conveyance may still be executory, and especially where some portion of the purchase price is paid and possession delivered to the purchaser, there arises at least an equitable title upon which the lien of a judgment might rest, and which might be reached by an execution after it had been fraudulently conveyed to a third person either by the debtor or by a colorable conveyance from another. Van Camp v. Peerenboom, 14 Wis. 65; Bartz v. Paff, 95 Wis. 95, 100, 69 N. W. 297; Foster v. Rowe, 132 Wis. 268, 111 N. W. 688. The authorities are quite unanimous, however, that a mere contract to sell and purchase at some time in the future, in no wise executed either by the payment of any of the purchase price or by delivery of possession, does not vest any such title in the proposed purchaser. It at most gives him a right of action upon his contract, which does not reach the dignity of an interest in the property, legal on equitable, until he performs at least in part. 1 Warvelle, Vendors (1st ed.) 188; 29 Am. & Eng. Ency. of Law (2d ed.) 603; Walker v. Douglas, 70 Ill. 445; Chappell v. McKnight, 108 Ill. 570; Peck v. Bemiss, 10 La. Ann. 160, 163; Broadwell v. Raines, 34 La. Ann. 677; Nunngesser v. Hart, 122 Iowa, 647, 98 N. W. 505. The question whether a written agreement is to be deemed one of present sale, or merely for sale in the future, depends upon the intent of the parties, which must be gleaned from the instrument itself, and, in case of ambiguity, from any surrounding conduct or circumstances. In this instance the so-called land contract is too plainly prospective to warrant extended discussion. By its terms Bunting does not presently sell, but agrees to sell at some time within thirty days, and Schallert does not declare that he purchases, but that at some time within the thirty days, upon conveyance, he will pay the proposed purchase price. Schallert took no possession until he had obtained the conveyance some four — 440 — days after tbe agreement for purchase was made, and, indeed, the written contract of purchase was in some part abandoned by both parties thereto, and upon the day of the actual conveyance their minds met upon new terms of sale, whereby, instead of a $3,000 note being given as part consideration and a $1,000 mortgage being assumed by the grantee, $1,451 in cash was paid and $2,300 of mortgages assumed, and whereby such payments were made, not upon a conveyance to Schallert, as provided in contract, but upon the conveyance to Bienfang. Such deed in no sense conveyed to Bienfang any interest in the real estate, legal or equitable, belonging to Schallert, but did convey to her Bunting’s complete title, for a consideration wholly paid by Schallert. Having concluded that the judgment is erroneous and not supported by the findings or by the facts proved, we are confronted with the further question whether, within the pleadings and proofs, any relief can be granted. The complaint, while expressly praying that the conveyance be set aside and the plaintiff’s judgment decreed to be a lien upon the property, contains allegation of all the facts necessary to establish a trust in the appellant and in favor of the plaintiff, together with all other creditors existing on March 10, 1905, and declares- that the suit is brought on behalf of the plaintiff and other creditors, although it attempts to limit the benefit of the suit to other judgment creditors. The complaint also, in addition to the prayer above mentioned, does ask for such •other and further relief as may be just and equitable. It also sufficiently shows inadequacy of any remedy at law by alleging issue and nulla bona return of execution under plaintiff’s judgment. That is prima facie proof that Schal-lert has no property within reach of execution, and the burden of proof is on defendant to disclose any such property. Gilbert v. Stockman, 81 Wis. 602, 51 N. W. 1076, 52 N. W. 1045; Zweig v. Horicon I. & Mfg. Co. 17 Wis. 362; Level L. Co. v. Sivyer, 112 Wis. 442, 453, 88 N. W. 317; Jones — 441 — v. Green, 1 Wall, 330. Tlie contention that, in order to invoke aid of a court of equity to reach specific real estate fraudulently conveyed by the debtor, the execution must issue to the county of its situs, if sustained, could have no application to such action as we determine this to be, namely, one in persorw/m .against a party residing in the county of the rendition of the judgment, to charge her with a trust. This complaint not having been assailed for insufficiency except by a general objection to evidence in the nature of a demurrer ore tenus, we conclude must be held sufficient to support such •equitable relief as may fairly result from the facts alleged and established, and to that end the present findings, so far as they go, may properly be taken as the conclusion of the trial court upon the facts which they cover, at least with reference to the real estate. But from those facts results, not a right in the plaintiff to have its judgment declared a lien •or to have any preference over other creditors, but a right to have decreed and declared as against appellant a trust in favor of all creditors existing at the time of the conveyance, including itself. There must therefore be proceedings to ascertain who those creditors are, based upon an adequately published notice limiting a reasonable time within which they may establish the amount of their claims, and, as a condition of being allowed to share in the fruits of the litigation, shall each pay to the plaintiff his proportionate share of the expenses which it has reasonably incurred in uncovering and realizing this fund. When the entire amount of such debts is ascertained, the appellant, by virtue of the statute, has the right to perform her trust by paying them, and upon default in so doing the court should provide for the sequestration of the real estate conveyed to her and sale thereof either by a receiver or some other proper method, and the apportionment of the amount so realized amongst the creditors who have become parties to the suit in the manner above — 442 — mentioned. Tlie form of such procedure and decree is discussed somewhat in 5 Ency. PI. & Pr. 603-610; Marsh v. Burroughs, 1 Woods, 463, Fed. Cas. No. 9,112; Hallett v. Hallett, 2 Paige Ch. 15; Thompson v. Brown, 4 Johns. Ch. 619; Williamson v. Wilson, 1 Bland, 418, 440; Stevens v. Brooks, 22 Wis. 695. By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.