Gross v. Arians

141 N.W. 224, 153 Wis. 435, 1913 Wisc. LEXIS 188

• Court: Wisconsin Supreme Court
• Decided: April 29, 1913
• Status: Published

Opinion

Timlin, J.

No equities of creditors are involved. There is no evidence that Peter Gross sold this farm to Arians or that the latter ever agreed to pay for it, except the recital of consideration paid in the deed, the. alleged admission of Arians to Miller, and the assignment to the administrator of the $6,000 mortgage. These are each and all explained and avoided by other facts in the case. The testimony of Judge Fehlandt is entirely nncontradicted and is to the effect that Peter Gross on February 17, 1908, requested him to draft a deed of this property from him, Gross, to the appellant; that he wished to give this property to appellant because he expected to be sued — expected a lawsuit; that there was no consideration, and in substance that he desired to make a gift of the property to appellant. Being asked why, if he intended to give away his property, he did not give it to one of his brothers, he persisted in his desire to make a gift to appellant. Appellant was present. Judge Fehlandt refused to draw the deed, but told Gross to think of it over night and come the next day. The next day Peter Gross and the appellant went to the office of Mr. Locke, a lawyer at Waterloo, and there the deed in question was executed and delivered and the appellant immediately causéd it to be recorded. There was nothing said about payment, no note or mortgage executed. Peter Gross left the state and the expected suit was commenced against him, and the appellant and others garnished. If the suit was of the nature described in the briefs of counsel it would probably abate by the death of Peter Gross; however, it was discontinued after his death. The declaration of appellant to Miller, if it was made, must be considered as made. It was not that he bought the land and owed for it, but that he bought the land and paid for it. The recital quoted from the deed is of the same character. While both, treated as declarations, 'are inconsistent with the notion of an ordinary gift inter vivos, they are in line with what would be ordinarily written or said in the case of a gift by deed made to defraud .creditors. Here the uncontroverted testimony of Judge Eeblandt comes in to throw light upon the whole transaction, and it is rather corroborated by the two items of evidence last above mentioned as well as by all the other facts of the case.

It is quite a serious thing to impose upon a man a contract which he never made. The mere recital of consideration in a deed, coupled with ‘an acknowledgment of its payment, is some evidence of the amount of the consideration paid, or to be paid, where the obligation to pay is admitted or otherwise proven. But it may not be evidence at all that the grantee promised to pay that sum. That would depend upon other facts in evidence. Such recital presents nothing of a promise or contract, merely a declaration of the fact that this was the amount of the consideration, and the declaration is made by the grantor. Jost v. Wolf, 130 Wis. 37, 43, 110 N. W. 232.

The assent of the grantee may be presumed from his acceptance of the deed, but what did he assent to % Surely not that there was a promise on his part to make future payment. See, also, McGiverin v. Keefe, 130 Iowa, 97, 106 N. W. 369; Mowrey v. Vandling, 9 Mich. 39. The recital in this deed is not inconsistent with the notion of a gift to defraud creditors. We have used the word “creditors” because that describes the ordinary and best understood case, but the law is the same as regards gifts made to hinder, delay, or defraud suitors out of their lawful actions, etc. Corry v. Shea, 144 Wis. 135, 128 N. W. 892. The proposition, therefore, that the conveyance was a gift made by Peter Gross to hinder 'and delay the plaintiff in the then threatened action is in no degree controverted but rather corroborated by all the other circumstances in the case, including the recital of consideration and acknowledgment in the deed, there having been no note or other evidence of an existing debt made; and including the false statement of Arians to Miller that he bought tbe land for $17,000 and paid for it. In sucb case tbe law leaves tbe parties just where they put themselves, and there is no promise implied to pay any other consideration than that agreed upon by and between the parties to the deed. The court instructed the jury:

“In considering the question whether Mr. Peter Gross did give this farm to Mr. Arians, it is the law that one may give his property to any one whom he pleases. If the evidence establishes the fact that Peter Gross did in fact make a gift of this farm to Mr. Arians, the plaintiff cannot recover.”

The jury, however, apparently viewed the case from their standpoint of things as they ought to be rather than from that of things as they are. We must hold that there is no evidence to support the verdict holding the appellant upon a promise to pay Peter Gross for this land.

It is contended that, because in his motion for a new trial upon the minutes after verdict and before judgment the appellant did not expressly ask that the verdict be set aside, the sufficiency of the evidence to support the verdict cannot be reviewed in this court. This is too technical. A motion for a new trial so made could ordinarily be granted only by setting aside the verdict, and therefore the request made includes setting aside the verdict. We believe nothing contrary to this can be found in the decisions of this court.

It is not necessary to consider the appeal from the order denying a new trial on the ground of newly discovered evidence.

By the Gourt. — Judgment reversed, and the cause remanded for further proceedings according to law.