« AnteriorContinuar »
that the plaintiff or his father would present them for pay. ment within a reasonable time, and they took the risk of making such presentment. Instead, they were sent several hundred miles to the northwest of Milwaukee, to New Richmond, and then back through Milwaukee to Chicago, and were then returned to Milwaukee for payment co the 21st, as before stated. It is clear that they were not presented for payment within a reasonable time after indorsement and de livery by the defendant, and the judgment of the county court was therefore correct: First Nat. Bank v. Miller, 37 Neb. 500; 40 Am. St. Rep. 499, and cases cited.
By the Court. The judgment of the county court is affirmed.
CHECKS—DILIGENCE REQUIRED IN PRESENTMENT OF.—To charge an is. dorser of a check it must be presented by the indorsee within a reasonable time. Such time depends upon the facts and circumstances of each partic. ular case: First National Bank v. Miller, 37 Neb. 500; 40 Am. St. Rep. 499, and note; monographic note to Holmes v. Briggs, 17 Am. St. Rep. 808. If the holder of the check and the banker on whom it is drawn reside in dif. ferent places the check must, in the absence of special circumstances, be forwarded by mail for presentment on the day, or on the next secular day after, it is received, and the agent or person to whom it is forwarded must, in like manner, present or forward it on the day or day after he receives it, in due course of mail, otherwise the drawer or indorser will be released: See monographic note to Holmes v. Briggs, 17 Am. St. Rep. 809, discussing checks and the duty of the holder thereof in order to make the drawer or indorser liable thereon.
ANSORGE V. BARTH,
(88 W 18CONSIN, 553.) INSOLVENT Debtor DISPOSITION OF EXEMPT PROPERTY. As against
creditors, an insolvent debtor has a right to give his exempt property to his son as well as his time in carrying on and managing his son's
business. FRAUD AGAINST CREDITORS — CONCEALMENT OF PROPERTY UNDER COVER
OF AGENCY.-An insolvent debtor cannot accumulate property under cover of another's name, acting ostensibly as the latter's agent. I such a claim is made, it is always a question of fact whether the business actually belongs to such other person or to the ostensible agent and debtor, and whether the alleged agency is a mere scheme aod dovice to conceal and keep the property used in, or gained by, it from his
creditors. FRAUDULENT CONVEYANCE-EVIDENCE-CONCEALMENT OF BUSINESS CAB
RIED ON IN Son's Name. In an action to subject land purchased in the name of the wife of an iusolvent debtor, and paid for out of the
proceeds of a business carried on by him in the name of his son, orta dence that the wife had no separate estate, that the son had made no other contribution to the business than the use of his name, that ho had paid no attention to the purchase of the real estate, which was made by his father, and not showing that the son had ever received any of the proceeds of the business, or that they have erer had an ac. counting with reference thereto, sustains findings that the debtor was the real owner of the business, and carried it on in the son's name for the purpose of fraudulently concealing it and its profits from his credito ors, that the real estate was purchased with such profits, and conveyed to the wife, and accepted by her with like fraudulent intent, and that it should be conveyed by her to her husband's assignee for the benefit of creditors. ACTION by the plaintiff, as assignee of the defendant Barth, for the benefit of his creditors, under an assignment made July 31, 1889, against the assignor and Anna Barth, his wife, to reach and subject to the payment of the debts of the age signor three certain parcels of real estate purchased, and conveyed to the defendant, Anna Barth, the value of the same aggregating about five thousand six hundred dollars. It was charged that the land was purchased with the money and funds of her husband, derived from a business carried on nominally in the name of his son, Alois Barth, but really and in fact by the father, and for the latter's sole benefit; and that the father caused the parties from whom he purchased the land to convey the title to his wife, for the purpose and with the intent of defrauding his creditors. There was a judgment for plaintiff, decreeing that Anna Barth should convey and assign the property to the plaintiff, to be disposed of by him in payment of the busband's debts, etc., and defendants appealed.
Wigman & Martin and Joshua Stark, for the appellants. Ellis, Greene & Merrill, for the respondent.
656 PINNEY, J. It appears that the assignor, Barth, in 1874, was engaged with others in the wholesale liquor business, and they failed. All the assignor's property not exempt from execution was taken on execution and sold. With his exemptions, amounting to two hundred dollars, he started a saloon, and continued in that business until May, 1881, but without much success, for it is conceded that he was still insolvent, and owned no property not exempt. He had a family of eight children, six of whom lived with him. His oldest son, Alois, was, and for some years had been, engaged in car
AL, ST, REP., VOL. XLIII.- 59
rying on successfully the business of manufacturing and selling cigars upon premises adjoining the building in which the assignor, Barth, had his salooon. The appellants claimed that in May, 1881, the assignor, Barth, sold and transferred his saloon business and the exempt property he owned connected therewith to his son, Alois, and that thereafter the business was carried on by and in the name of the son, by whom the license fees and special taxes on the business were paid; that the assignor, A. Joseph Barth, was employed as manager of the business, at a salary of sixty dollars a month during the first two years, and thereafter of seventy dollars; two other sons were also employed upon various salaries in the said business; that, shortly after purchasing the saloon, Alois borrowed four hundred dollars, and started in a small way a wholesale liquor business upon the same premises. It appeared 557 that the special taxes to the United States for the liquor business had been charged to Alois, the son, each year, from May 7, 1884, to July, 1892, and receipts given therefor were in his name, and that licenses were issued for the same business by the city of Green Bay to him from May, 1887, to May, 1892; that Alois Barth did not actively participate in the management of the saloon or the liquor business, but they were entirely conducted by his father. It seems to be a fair conclusion, from the eridence, that the proceeds of the cigar business were not used in any way for the saloon or liquor business, but that each business was managed and conducted entirely separate from the other; and the question presented was whether the title and ownership of the son to the saloon and liquor business and its proceeds were real and bona fide, or whether they were merely simulated, and a sham and cover to protect and keep the property from his father's creditors, and enable him to enjoy and dispose of it at his pleasure.
There was some evidence tending to show that on a few occasions the father had spoken and acted in reference to the business as his own, but it was all transacted in the name of the son. It was shown beyond dispute that the property in question was purchased and paid for, and some of it considerably improved, from the proceeds of the liquor business. The assignor, Barth, was, during all these years, insolvent, and there was a judgment over him, upon which there was due over ten thousand rollars, besides interest; and this fact shows a strong motive why a man not more
than fifty-four years old consented to become a subordinate and servant where he had hitherto been owner and master. After the lapse of a considerable number of years he made the assignment, upon the basis of which he now seeks to obtain a discharge from bis debts; and this is significant, and shows his anxiety to be again in a position to transact business in his own name; but, if the theory advanced by the appellants is true, he has no means whatever with which to engage in any business pursuit. A careful exam. ination of the evidence shows, so far as we can discover, that all that Alois, the son, ever contributed to the business was the mere use of his name; for it is doubtful if he ever paid his father any thing for the exempt property, and the borrowed money raised to extend the business was, no doubt, paid out of its profits. There is certainly no evidence that Alois paid any thing out of the proceeds of his cigar business to or for the benefit of the saloon or liquor business, and there was no substantial or satisfactory change of possession at the time of the alleged transfer. The facts upon which the defendant Anna Barth founds her title are certainly very equivocal, not to say suspicious. Besides, the relations existing between the parties are such that, while they are not per se a badge of fraud, yet they facilitate and render its perpetration comparatively easy, and are proper matter for consideration in connection with all the facts and circumstances: Horie v. Price, 31 Wis. 82, 86; Beard v. Dedolph, 29 Wis. 136. The assignor and his wife, as well as Alois, all testified that the business belonged to and was the business of the latter, and that his father had no interest in it; but their statements to this effect are, to a great extent, matter of opinion and conclusion, and, in view of the circumstances, are not very satisfactory evidence. Neither the books kept in the liquor store or cigar business, nor any documentary evidence whatever, beyond the deeds to the real estate and the licenses and tax receipts, were presented to sustain the title of the defendant Anna Barth as against the claim of her husband's creditors and the circumstantial and cogent evidence of fraud thus presented.
The issue was a narrow one; namely, whether A. Joseph Barth was merely a bona fide employee, without interest or ownership, or not. There was no evidence to show that Alois ever actually received any of the proceeds of the saloon 569 or liquor business, or that there was ever any accounting between the father and son, or any balance stated in relation to a business wholly managed by the former and entirely separate and distinct from the cigar business of the son; and, while the liquor business must have been quite a considerable one, the books kept in it were not produced, showing the amount of profits gained, or what disposition or use had been made of them, beyond the purchase of the property in question. The testimony of Alois Barth in regard to the purchase of the real estate places whatever might otherwise be considered equivocal or ambiguous in a strong and clear light. He said his father managed the purchase of the real estate, and added: “I could not tell you any thing about that. It may be so. I don't know. I might have heard my father say something about it, but I never paid any attention to it. My mother might have spoken of it, but it has escaped my memory. I have enough to do to mind my own business." And yet he claims that he furnished the money to purchase the property, and that it was the proceeds of his liquor business; that he kept an account of the money in his mind, but in no other way. He says he was not present when the bargains were made for the property; that he did not attend to the buying of it, but his father might; that it might have been by some other person. “I don't know any thing about it. Q. You did n't have any interest in that ? A. No." Although he subsequently said he had "some thing to say about the payment, and the manner in which it was to be made,” but what he does not state, and that the deed was to be made in the name of his mother, but this may have been merely advisory.
The theory of the defense is that Alois gave his mother this money, part of the proceeds of the liquor business, with which the property in question was purchased; and it is claimed that the assignor, the husband, as against his 560 creditors, had a right to give Alois his exempt property, and his time as well in managing the business. As matter of law this is correct, and must be conceded: Carhart v. Har. shaw, 45 Wis. 340; 30 Am. Rep. 752; Allen v. Perry, 56 Wis. 185; Dayton v. Walsh, 47 Wis. 113; 32 Am. Rep. 757; Mayers v. Kaiser, 85 Wis. 382; 39 Am. St. Rep. 849. But an insolvent debtor cannot accumulate property under the cover of another's name, acting ostensibly as the agent of such other, and hold it as against his creditors; and, where such a claim is made, it is always a question of fact whether the business