A. D. Baker Co. v. Booher

Siebecker, J. Plaintiff, an Ohio corporation licensed to do business in Wisconsin, brings this action to set aside a transfer of a farm by the defendants Isaiah Booher and his wife, Mary, to their sons Clarence and Scott Booher, and to subject the real estate to the lien of certain judgments plaint iff has secured against the defendant Isaiah Booher. The facts as found by the court are practically undisputed and are in substance these: The defendant Isaiah Booher and his wife, Mary, were for many years before the commencement of this action residents of Richland county. They, with their sons Clarence and Scott, occupied and cultivated a farm of 600 acres situated in this county. Up to January 6, 1906, the farm was owned by Isaiah Booher. On November 7, 1905, Isaiah Booher purchased from the plaintiff a threshing outfit costing $1,790.15, for which he gave his six notes to the plaintiff, maturing in one, two, three, four, five, and six years from date, with interest. In March, [321] 1906, lie purchased other property of the plaintiff and gave his notes for the purchase price thereof in-the sum of $160. At the time of purchasing the threshing outfit Isaiah Booher made a written statement for the purpose of obtaining credit for the purchase of this threshing outfit, to the effect that he owned this farm, describing same, of 600 acres in fee simple; that it was worth $30,000; that it was free from incumbrances excepting the unpaid balance of $6,000, due in November, 1909, secured by two mortgages on the premises; that he owned personal property valued at $5,000, free from incum-brances, and that no judgments existed against him. On January 6, 1906, Isaiah Booher and his wife by warranty deed conveyed the 600-acre farm and the personal property situated thereon to their son Glarence, reserving timber and mineral rights. In consideration of such transfer the son Glarence agreed to convey an undivided half interest in all the real and personal property embraced in the transfer to his brother, Scott, when he attained the age of twenty-one years, and the sons were to care for, provide, and maintain Isaiah Booher and his wife, Mary, pursuant to the terms stipulated in the deed during the rest of their natural lives; and no other consideration was paid for such property. On June 14, 1909, the son Glarence conveyed to his brother, Scott, who was then of age, an undivided half interest in the property, and the mother, Mary Booher, on the same day conveyed to Glarence all her right, title, and interest therein which she had acquired under a decree of divorce rendered September 14, 1906, awarding her a divorce from her husband, Isaiah, and transferring to her, as a final division of his property, all the right, title, and interest Isaiah Booher had in and to the property conveyed to the sons. The court found that this divorce action was brought and prosecuted in good faith by Marry Booher and that the decree therein was awarded upon good and lawful grounds and was not tainted by any fraud of the parties. From the time of the [322] rendition of tbe divorce judgment to tbe commencement of this action, Isaiah Booher and Mary Booher resided on tbe farm and a portion of tbe time in tbe same dwelling bouse, and bave been supported and maintained from tbe proceeds and income therefrom. At tbe time Isaiah Booher purchased tbe threshing-machine outfit from tbe plaintiff, bis wife and sons knew that be bad obtained it on credit and owed plaintiff tbe whole purchase price; that be bad given plaintiff notes to evidence tbe debt, and to secure payment thereof bad executed a chattel mortgage on this property so purchased. On August 7, 1906, tbe plaintiff seized all of tbe machinery under tbe chattel mortgage and bought it at a sale under tbe chattel mortgage for $800. This foreclosure and purchase was prior to tbe time tbe first note was due and before judgment was obtained against Isaiah Booher. It appears that Isaiah Booher retained title to twenty acres of land situated about three quarters of a mile from tbe home farm, which be subsequently sold for $500. He also owned 180 acres of land in Vernon county, which be subsequently sold, receiving as consideration other lands and some cash. He also bad a stock of goods with an indebtedness thereon of $1,900. Tbe estimated value of tbe goods by tbe defendant was about double tbe amount of tbe indebtedness thereon. One of plaintiff’s witnesses testifies that it was worth about $200. At tbe trial it appeared that tbe personal property and Booher’s interests in real estate held in bis own name, after transferring tbe home farm to bis sons, was either seized in legal proceeding or by him applied to pay debts in tbe summer and autumn of 1906. Tbe plaintiff recovered a judgment on tbe first note after its maturity in November, 1907, and on other notes in January, 1909; on which judgments there remained unpaid tbe sum of $1,238.75 when this action was commenced. The trial court found that tbe transfer of the farm in Jan323 nary, 1906, was made in good faith and without any fraudulent intent by the parties thereto and that the divorce action was prosecuted in good faith upon legal grounds; that the proceeding was free from collusion and fraud, and that the judgment awarding the wife all the right, title, interest, and equity the husbknd had in the farm constituted a final division and distribution of the husband’s estate. Under the decree the wife became vested with all the interests her husband, at that time, had in the property embraced in the decree. It operates to bar her dower and homestead rights in any property of the husband. It also results from this decree that whatever property she acquired by it constitutes her separate estate, and that the judgment is final and conclusive and not open for alteration after the term at which it was rendered. Gallager v. Gallager, 101 Wis. 202, 77 N. W. 145; Donovan v. Donovan, 20 Wis. 586; Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028. The wife’s dower interest in the farm would in no way be affected if it were established that the conveyance of. Isaiah' Booher to his sons was in fraud of his creditors. The contention that her participation in her husband’s conveyance to the sons, in fraud of his creditors, deprived her of all her marital rights and claims to this property has no foundation. Munger v. Perkins, 62 Wis. 499, 22 N. W. 511; Huntzicker v. Crocker, 135 Wis. 38, 115 N. W. 340. If it be assumed, as contended, that the deed from Isaiah Booher to his sons is void as to creditors, this in no way affected the wife’s rights to a final division and distribution of the husband’s estate in the divorce action.' As above stated, the divorce action was based on good and lawful grounds and the parties thereto were not guilty of any collusion or fraud in prosecuting the same to final judgment. The evidence in the case fails to show that Isaiah Booher did not retain sufficient property in his own name at the time he conveyed the farm to his sons in January, 1906, to cover [324] his indebtedness, if providently applied. It cannot, therefore, be said that he was an insolvent after parting' with the home farm. The fact that there was no fraud in the divorce proceeding and that Isaiah Booher retained the property he did when the farm was transferred made it proper for the court, in the divorce action, to proceed to make a final division and distribution of his estate, having due regard for the legal and equitable rights of the parties, their character and situation, the husband’s ability, and all the circumstances of the case, as provided by sec. 2364, Stats. The divorce judgment fixed her rights, and since there is no question of fraud in obtaining this decree, her rights, after having become fixed by the judgment of the court, are as much entitled to the protection of the law as the claims of the husband’s creditors. In any legal proceeding by the plaintiff for the collection of its debt, the divorce judgment must be treated as final so far as it is here involved. It is considered that the defendant Mary Booher cannot be deprived of the interests awarded her in the property embraced in the divorce judgment ; that she owns it as her separate estate, and hence the plaintiff cannot subject these premises to the lien of its judgments as demanded in the complaint. By the Court. — The judgment appealed from is affirmed.