Le Saulnier v. Krueger

54 N.W. 774, 85 Wis. 214, 1893 Wisc. LEXIS 226

• Court: Wisconsin Supreme Court
• Decided: May 23, 1893
• Status: Published

Opinion

The following opinion was filed March 21, 1893:

WiNslow, J.

The contest is between one of the husband’s creditors and the wife, where the wife claims to hold the property in question by conveyance direct from her husband, made after the indebtedness accrued. In such case the wife has the burden of showing by clear and satisfactory evidence that she purchased and paid for the property out of her separate estate. Gettelmann v. Gitz, 78 Wis. 439. It is clear by the undisputed testimony that she has not done so. The alleged release of dower and homestead rights is no consideration, for she cannot make such a release to her husband during coverture. Wilber v. Wilber, 52 Wis. 298; Leach v. Leach, 65 Wis. 284.

The money which she claims to have received from her father soon after marriage cannot be considered a consideration as against the husband’s creditors, , because the testimony shows that she made a complete gift of it to her husband, nearly or quite twenty years ago, with no agreement that it should be repaid.

There being no consideration for the conveyance shown, the plaintiff was entitled to have it set aside so far as it interfered with the collection of his judgment.

The execution upon the plaintiff’s judgment was returned unsatisfied after the expiration of sixty days, within which the statutes direct that it shall be returned; and it is claimed by defendant that for this reason it does not appear that an execution has been returned unsatisfied. The objection cannot prevail. The lapse of time does not divest the officer of power to make a return. 2 Freeman, Executions (2d ed.), § 353.

By the Court.— Judgment reversed, and cause remanded with directions to render judgment for plaintiff in accordance with this opinion; with authority, however, to the circuit court in its discretion to grant a new trial upon proper terms if a proper case be made showing that justice requires it.

Upon a motion for a rehearing there was a brief for the respondents by M. J. Wallrich, attorney, and Spooner, Sanborn & Kerr, of counsel, and a brief for the appellant' by JS. J. Goodrich.

The respondents sought, upon such motion, to have the order of this court (which at first directed merely that judgment be rendered for plaintiff), so modified as to permit the circuit court to grant a new trial upon proper showing made, citing Garbutt v. Bank of Prairie du Chien, 22 Wis. 384-395; Curtis v. Brown Co. id. 167; Hart v. Smith, 44 id. 213-229; Griffin v. Marquardt, 17 N. Y. 28; Schroeder v. Schweiser L. T. V. G. 60 Cal. 467-472.

The order was so modified, as shown above, and the motion for a rehearing was denied May 23, 1893.