LyoN, J.
1. An objection founded upon an alleged defect in the complaint, will first be considered. The complaint alleges, generally, the appointment by the court of the plaintiff as receiver of the property of the defendant Henry Mueller, and his qualification as such, without stating the supplementary proceedings which resulted in such appointment. The answer denies his appointment, but does not deny his right to maintain this action if he was appointed. When proof of such appointment was offered, an objection thereto was interposed on behalf of the defendants, but the objection was overruled, and [433]*433the evidence received. This is an objection that the complaint fails to show that the plaintiff has legal capacity to sue, rather than that the complaint fails to state a cause of action. The objection not having been taken by demurrer or answer, it must be deemed to have been waived. E. S. 1858, ch. 125, secs. 5 and 9. Issue was taken upon the allegation of the plaintiff’s appointment as receiver, and upon that alone. On this issue the proof was admissible, and, when received, it showed that the plaintiff has legal capacity to maintain this action. E. S. 1858, ch. 134, sec. 96. For these reasons we think the objection was not well taken.
2. As to the facts. The defendant Henry Muell&r was insolvent when he executed the conveyance in question to his son, Bruno; or, at least, such conveyance rendered him insolvent if it is upheld. If, therefore, it was made without consideration— if it was a mere gift in trust for the grantor,— it cannot stand as against the creditors of the grantor. E. S. 1858, ch. 107, see. 1. And in such case it is quite immaterial whether the grantee knew or did not know that his grantor was insolvent. So, also, if the conveyance was executed and received with the intent to hinder, delay or defraud the creditors of the grantor, it is void as against such creditors. E. S. 1858, ch. 108, secs. 1 and 5.
The defendant Bnmo Mueller became of age more than four years before his father conveyed to him the land in controversy: Both father and son testify, that when the latter became of age, his father agreed to pay him wages if he would remain at home and work for his father, but t]je amount or rate of such wages was not agreed upon; that a short time before the conveyance was executed, they agreed upon twelve dollars per month as the rate; that, on a partial accounting, they found due Bruno, on account of "wages, over five hundred dollars; and that the land was conveyed in payment or on account of such indebtedness. It appears that the land conveyed was worth about $900; that it was incumbered by mortgages to the amount of about $500; and that Bnmo took the conveyance subject to the mortgages.
[434]*434Within the rule of Tyler v. Burrington, and the cases there cited (39 Wis., 376), if an express agreement to pay wages was made, Bruno paid an adequate and valuable consideration for the land, and the conveyance is not a mere voluntary one. The court found that the elder Mueller was not indebted to Bruno when he made the conveyance; and that Brwio paid no consideration for the land. In substance and effect this is a finding that there was no express agreement by the father to pay his son wages, and hence, that the testimony of father and son in that behalf is untrue.
The question we are to determine is, whether there is such a preponderance of evidence in support of the alleged express agreement of the father to pay Bruno wages, as will authorize ns to hold, against the findings of the circuit court, that such agreement was proved. The testimony of both father and son, particularly that of the father, in respect to such alleged agreement, is quite unsatisfactory. To the question put to him by his own counsel, “ Was there any thing said between you and Bruno, when he was twenty-one years old, as to your paying him sometime in the future for the work he did from his twenty-first year on?” the father answered, “No.” And it was only when his attention was particularly called to the subject of wages, frequently by leading questions, that he testified to the agreement. For example, immediately after the above question and answer, we find the following: “You stated in your examination before Estabrook, that the arrangement between you and your son was this: ‘ When he was twenty-one years old, he said he would stay with me if I would give him wages.’ How is that? 'A. We made no certain sum. I stated that, but we did not agree on a certain sum. Q. What did your son say at this time [when he was twenty-one years old]? A. That he would stay with me. Q. Did you agree to do anything if he would stay with you? A. I agreed to give him all I had. This was not at the time when he was twenty-one. It was when he was twenty-four. Q. When he was twenty-one years old, you say, Bruno said he would stay with you if you would give him wages. You said [435]*435that in your examination before Estabrook. Did Bruno say this to you? A. Briono said that to me. Q. What answer did you make to that? A. I told him to stay with me until I should he able to pay him.”
Bruno’s testimony concerning the alleged agreement is more direct than that of his father; yet he commences it in a manner that implies some doubt or uncertainty. The first question on the subject put to him by his counsel, was: “At or about the time you were twenty-one, did you have any conversation with’ your father relative to staying with him, and under what conditions were you staying with him?” to which he answered: “I think we had a talk about staying with him after I was twenty-one. I think I said I would stay with him if he would give me wages — what was right.” Later, however, he testified positively to the agreement.
It appears from the testimony of these parties, that nothing more was said between them about wages, or payment for work, until four years and seven months after the alleged agreement was made. Bruno continued to live with his father and work on the farm the same as during his minority, and his father supported him all that time, supplying him with money and clothing, of which no account whatever was kept. After the conveyance, the same state of things continued. The products of the two lots were not kept separate; father and son worked on both lots, using and treating them as constituting one farm; and the "products and proceeds of the whole were used for the benefit of the family just as they had been used before the conveyance. In short, it does not appear but that the father had the same control over and beneficial interest in the lot conveyed to Bruno, after such conveyance, that he had before. Moreover, at the time such conveyance was made, the father attempted to transfer to Bruno nearly all of his personal property liable to seizure on execution. True, its value was small, but the fact is none the less significant. When the above facts are considered in connection with the further facts that the conveyance of the land and the transfer [436]*436of the personal property to Bnmo left the father without any property liable to seizure for his debts, and that his indebtedness to Shove was then due, the presumption is very strong that the conveyance to Bnmo was made in secret trust for the grantor, and with intent to defraud his creditors, especially Shove; and that the theory that it-was made pursuant to a previous agreement to pay Bruno
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LyoN, J.
1. An objection founded upon an alleged defect in the complaint, will first be considered. The complaint alleges, generally, the appointment by the court of the plaintiff as receiver of the property of the defendant Henry Mueller, and his qualification as such, without stating the supplementary proceedings which resulted in such appointment. The answer denies his appointment, but does not deny his right to maintain this action if he was appointed. When proof of such appointment was offered, an objection thereto was interposed on behalf of the defendants, but the objection was overruled, and [433]*433the evidence received. This is an objection that the complaint fails to show that the plaintiff has legal capacity to sue, rather than that the complaint fails to state a cause of action. The objection not having been taken by demurrer or answer, it must be deemed to have been waived. E. S. 1858, ch. 125, secs. 5 and 9. Issue was taken upon the allegation of the plaintiff’s appointment as receiver, and upon that alone. On this issue the proof was admissible, and, when received, it showed that the plaintiff has legal capacity to maintain this action. E. S. 1858, ch. 134, sec. 96. For these reasons we think the objection was not well taken.
2. As to the facts. The defendant Henry Muell&r was insolvent when he executed the conveyance in question to his son, Bruno; or, at least, such conveyance rendered him insolvent if it is upheld. If, therefore, it was made without consideration— if it was a mere gift in trust for the grantor,— it cannot stand as against the creditors of the grantor. E. S. 1858, ch. 107, see. 1. And in such case it is quite immaterial whether the grantee knew or did not know that his grantor was insolvent. So, also, if the conveyance was executed and received with the intent to hinder, delay or defraud the creditors of the grantor, it is void as against such creditors. E. S. 1858, ch. 108, secs. 1 and 5.
The defendant Bnmo Mueller became of age more than four years before his father conveyed to him the land in controversy: Both father and son testify, that when the latter became of age, his father agreed to pay him wages if he would remain at home and work for his father, but t]je amount or rate of such wages was not agreed upon; that a short time before the conveyance was executed, they agreed upon twelve dollars per month as the rate; that, on a partial accounting, they found due Bruno, on account of "wages, over five hundred dollars; and that the land was conveyed in payment or on account of such indebtedness. It appears that the land conveyed was worth about $900; that it was incumbered by mortgages to the amount of about $500; and that Bnmo took the conveyance subject to the mortgages.
[434]*434Within the rule of Tyler v. Burrington, and the cases there cited (39 Wis., 376), if an express agreement to pay wages was made, Bruno paid an adequate and valuable consideration for the land, and the conveyance is not a mere voluntary one. The court found that the elder Mueller was not indebted to Bruno when he made the conveyance; and that Brwio paid no consideration for the land. In substance and effect this is a finding that there was no express agreement by the father to pay his son wages, and hence, that the testimony of father and son in that behalf is untrue.
The question we are to determine is, whether there is such a preponderance of evidence in support of the alleged express agreement of the father to pay Bruno wages, as will authorize ns to hold, against the findings of the circuit court, that such agreement was proved. The testimony of both father and son, particularly that of the father, in respect to such alleged agreement, is quite unsatisfactory. To the question put to him by his own counsel, “ Was there any thing said between you and Bruno, when he was twenty-one years old, as to your paying him sometime in the future for the work he did from his twenty-first year on?” the father answered, “No.” And it was only when his attention was particularly called to the subject of wages, frequently by leading questions, that he testified to the agreement. For example, immediately after the above question and answer, we find the following: “You stated in your examination before Estabrook, that the arrangement between you and your son was this: ‘ When he was twenty-one years old, he said he would stay with me if I would give him wages.’ How is that? 'A. We made no certain sum. I stated that, but we did not agree on a certain sum. Q. What did your son say at this time [when he was twenty-one years old]? A. That he would stay with me. Q. Did you agree to do anything if he would stay with you? A. I agreed to give him all I had. This was not at the time when he was twenty-one. It was when he was twenty-four. Q. When he was twenty-one years old, you say, Bruno said he would stay with you if you would give him wages. You said [435]*435that in your examination before Estabrook. Did Bruno say this to you? A. Briono said that to me. Q. What answer did you make to that? A. I told him to stay with me until I should he able to pay him.”
Bruno’s testimony concerning the alleged agreement is more direct than that of his father; yet he commences it in a manner that implies some doubt or uncertainty. The first question on the subject put to him by his counsel, was: “At or about the time you were twenty-one, did you have any conversation with’ your father relative to staying with him, and under what conditions were you staying with him?” to which he answered: “I think we had a talk about staying with him after I was twenty-one. I think I said I would stay with him if he would give me wages — what was right.” Later, however, he testified positively to the agreement.
It appears from the testimony of these parties, that nothing more was said between them about wages, or payment for work, until four years and seven months after the alleged agreement was made. Bruno continued to live with his father and work on the farm the same as during his minority, and his father supported him all that time, supplying him with money and clothing, of which no account whatever was kept. After the conveyance, the same state of things continued. The products of the two lots were not kept separate; father and son worked on both lots, using and treating them as constituting one farm; and the "products and proceeds of the whole were used for the benefit of the family just as they had been used before the conveyance. In short, it does not appear but that the father had the same control over and beneficial interest in the lot conveyed to Bruno, after such conveyance, that he had before. Moreover, at the time such conveyance was made, the father attempted to transfer to Bruno nearly all of his personal property liable to seizure on execution. True, its value was small, but the fact is none the less significant. When the above facts are considered in connection with the further facts that the conveyance of the land and the transfer [436]*436of the personal property to Bnmo left the father without any property liable to seizure for his debts, and that his indebtedness to Shove was then due, the presumption is very strong that the conveyance to Bnmo was made in secret trust for the grantor, and with intent to defraud his creditors, especially Shove; and that the theory that it-was made pursuant to a previous agreement to pay Bruno wages, has no foundation in fact, but was an afterthought.
At all events, the mdicia of fraud in the conveyance, and the circumstantial evidence that the same was made without' consideration and in trust for the use of the grantor, are quite too numerous and significant to be disregarded. They controlled the findings and judgment of the circuit court; and we are unable to say that the court did not find and adjudge correctly on the evidence before it.
.3. It is claimed by the learned counsel for the defendants, that ten acres of the land conveyed to Bruno was part and parcel of the homestead of the grantor (who retained but 30 acres of his original farm and homestead), and hence that the conveyance is valid as to such ten acres, although invalid against creditors of the grantor as to the remainder of the land.
Had an execution against the property of the grantor been levied upon the lot before he conveyed it to Bruno, doubtless he might have selected and held ten acres of it in a compact form adjoining his other lot, as part and parcel of his homestead. It is also probable that ’had Bruno made such selection on the trial of this action in the circuit court, he would be entitled to hold that specific ten acres against his father’s creditors. But this homestead claim is made for the first time in this court, and no specific parcel of land has ever been designated as the subject of such claim. Should we reverse this judgment because an indefinite ten acres of the lot was not excepted from its operation, Bruno may never make the selection. If he should not, the same judgment would have to be reentered. To reverse a judgment on appeal and remand the cause, not for a new trial, but with directions to the court below, in a [437]*437given contingency, to render the same judgment over again, ■would be novel practice. Eor these reasons we think this homestead claim comes too late to he enforced.
By the Court. — The judgment of the circuit court is affirmed.
Etas’, O. J., took no part.