Ramash v. Scheuer

55 N.W. 700, 85 Wis. 269, 1893 Wisc. LEXIS 286

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

Opinion

Winslow, J.

If the deed from Lamach to his father-in-law was executed in good faith and for a sufficient consideration, as the trial court found, then it is manifest that Scheuer's attachment levy would not constitute any lien upon the land. This is the crucial question in the case. It is said that there was no consideration, because Bam,ash had discharged the mortgage upon the margin and certified that the same was paid'. Bamash was an ignorant man, not able to speak English. The evidence clearly . shows he understood little of the precise character of the numerous papers which were from time to time executed. The evidence also clearly shows that he never delivered up his bond or note; that he never received back the money which he advanced to Lamach; and it is a fair conclusion from the whole case that he never intended to discharge the debt or the agreement for support, but simply intended to release the lien of the mortgage, in order to facilitate his son-in-law’s sale of the thirty-eight acres. This seems to have been the conclusion of the circuit court, and we think it justified by the evidence. If this was so, there was clearly a sufficient consideration for Lamach’s deed to Ramash, and, the transaction being in good faith, the creditors of Lamach can thereafter acquire no lien on the land by attachment.

There is no question of homestead necessary to be discussed here, as the circuit court found, in accordance with defendant’s contention, that the Lamachs had abandoned their homestead rights before the deed was made to Ra~ mash.

A motion for a nonsuit as to defendant Seheuer was •made at the close of the plaintiff’s case, and overruled. It is now contended that the action cannot be maintained as against Seheuer, even if his attachment was ineffective, because no collusion was shown or found between him and Bartleme. The allegation of collusion may have been necessary in the complaint, but it does not necessarily follow that the defendant is entitled to be discharged because it did not appear upon the trial. With all the parties before the court, “ equity delights to do justice, and that not by halves.” In this case the issue has been fully made' and tried between the proper parties as to the validity of the deeds and the effect of the levy, and equity will not at this stage stay its hand for a reasoh so purely technical as the one urged. The defendant Seheuer might have disclaimed any interest and retired from the litigation, but he chose to take issue and try the questions on the merits. We see no good reason why costs should not follow the judgment.

By the Court.— Judgment affirmed.