Fischer v. Schultz

Wisconsin Supreme Court

Fischer v. Schultz

74 N.W. 222, 98 Wis. 462, 1898 Wisc. LEXIS 160

DecidedFebruary 8, 1898

StatusPublished

This text of 74 N.W. 222 (Fischer v. Schultz) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fischer v. Schultz, 74 N.W. 222, 98 Wis. 462, 1898 Wisc. LEXIS 160 (Wis. 1898).

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Opinion

WiNsnow, J.

Careful perusal of the evidence satisfies us that the findings of the circuit court to the effect that the ■deed of the farm made by the father to his son was fraudulent and void because made without consideration and for the purpose of defeating the plaintiff in the collection of any judgment which he might obtain, are entirely justified by the evidence. This being so, the only question remaining is as to the homestead.

The farm.was composed of seventy-three acres- of land, being one forty and the north thirty-three acres of another forty adjoining it on the south. The buildings were located upon the south thirty-three acres. The defendant William testifies that in November, 1890, he made an oral arrangement with his son to deed the land to him (his son being, then sixteen years of age), and that the deed made in November, 1893, was simply an execution of this parol agreement; that when the parol agreement was made he ('William) stated that the east forty acres — that is, a long strip of land off the east side of the seventy-three acres — was his homestead. There was never anything done to indicate this alleged selection in any way. The fact is that the east strip so claimed comprises the most valuable part of the land, the west part being low and swampy. There was no other evidence of selection of homestead at any time. The story is improbable on its face, because there was nothing to call for a selection at that time, and the trial judge evidently disbelieved this [465]*465testimony, as he disbelieved the entire testimony with regard to the supposed parol contract. He was entirely justified in such conclusion by the evidence. The findings, in effect, negative the alleged selection.

After the defendant William had thus conveyed his entire farm, he never attempted to make any selection, nor in his answer did he claim any specific forty as his homestead. In this situation it was plainly the duty of the court to put at rest the whole matter in controversy ,so far as it could be done, and prevent further litigation. The purpose of the action is to subject the land, or some part of it, to the levy of the plaintiff’s execution, and the judgment would be plainly imperfect and defective if it decided that a part of the land was subject to levy, but did not decide which part. The claimant of the homestead having failed to make his selection or make any specific claim in his pleadings, we think it became the duty of the court to fix the homestead right, on the ground that the claimant had waived his statutory right of selection.

By the Court.— Judgment affirmed.

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WiNsnow, J.

Careful perusal of the evidence satisfies us that the findings of the circuit court to the effect that the ■deed of the farm made by the father to his son was fraudulent and void because made without consideration and for the purpose of defeating the plaintiff in the collection of any judgment which he might obtain, are entirely justified by the evidence. This being so, the only question remaining is as to the homestead.

The farm.was composed of seventy-three acres- of land, being one forty and the north thirty-three acres of another forty adjoining it on the south. The buildings were located upon the south thirty-three acres. The defendant William testifies that in November, 1890, he made an oral arrangement with his son to deed the land to him (his son being, then sixteen years of age), and that the deed made in November, 1893, was simply an execution of this parol agreement; that when the parol agreement was made he ('William) stated that the east forty acres — that is, a long strip of land off the east side of the seventy-three acres — was his homestead. There was never anything done to indicate this alleged selection in any way. The fact is that the east strip so claimed comprises the most valuable part of the land, the west part being low and swampy. There was no other evidence of selection of homestead at any time. The story is improbable on its face, because there was nothing to call for a selection at that time, and the trial judge evidently disbelieved this [465]*465testimony, as he disbelieved the entire testimony with regard to the supposed parol contract. He was entirely justified in such conclusion by the evidence. The findings, in effect, negative the alleged selection.

After the defendant William had thus conveyed his entire farm, he never attempted to make any selection, nor in his answer did he claim any specific forty as his homestead. In this situation it was plainly the duty of the court to put at rest the whole matter in controversy ,so far as it could be done, and prevent further litigation. The purpose of the action is to subject the land, or some part of it, to the levy of the plaintiff’s execution, and the judgment would be plainly imperfect and defective if it decided that a part of the land was subject to levy, but did not decide which part. The claimant of the homestead having failed to make his selection or make any specific claim in his pleadings, we think it became the duty of the court to fix the homestead right, on the ground that the claimant had waived his statutory right of selection.

By the Court.— Judgment affirmed.

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Bluebook (online)

74 N.W. 222, 98 Wis. 462, 1898 Wisc. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fischer-v-schultz-wis-1898.