In re Mabbett

41 N.W. 531, 73 Wis. 351, 1889 Wisc. LEXIS 172

• Court: Wisconsin Supreme Court
• Decided: January 29, 1889
• Status: Published

Opinion

Cassoday, J.

The objecting creditors have failed to argue the case or present any brief. It is therefore subject to reversal under the rule. There may be some reason for withdrawing the matter from the jury and dismissing the petition not apparent upon the record or which has not suggested itself to us. The mere failure, however, to inventory the portion of the homestead in excess of the exemption is not, as it seems to us, under the facts stated, sufficient to bar a discharge. It was only four and one-quarter feet front, and of the value of $637.50. There was a mortgage on the premises of $10,000, given nine years before the petition was filed. Assuming the mortgage to have been valid, then such strip, or the avails thereof, would necessarily have been first sold or applied on the mortgage debt. But the title of that had been in the petitioner’s wife for more than nine years prior to the filing of such petition. Ve cannot say, as a matter of law, that the putting of the title in \ the wife, or the giving of the mortgage, or the giving of the previous mortgage on the household goods, was with intent to defraud creditors. If either was claimed to have been made with such intent, then the question of such intent should have been found by the jury or court. Sec. 2323, R. S. We do not think it can be said, as a matter of law, from the facts disclosed in the record, that the petitioner wilfully swore falsely in his affidavit filed, or upon his examination, within the meaning of sec. 4302, E. S. Nor does it appear that be had done any of the things therein enumerated as a bar to such discharge. ¹

By the Court. — The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.