Opinion
March 8, 1943. —
April 13, 1943.
APPEAL from a judgment of the county court of Marinette county: WM. F. HAASE, Judge. Affirmed.
For the appellant there was a brief by Lehner Lehner, Adolph P. Lehner, Howard W. Eslien, and Howard Lehner, all of Oconto Falls, and oral argument by Mr. Eslien.
L. M. Evert of Marinette, for the respondent.
Action commenced October 22, 1940, by August Giese against Albert Giese to recover on past-due notes. From a judgment dismissing plaintiff's complaint with costs, plaintiff appeals.
On July 12, 1930, the appellant sold forty acres of land to his son for the sum of $2,200, giving him a land contract providing for the payment of $100 at the time of the execution of the contract and $100 per year thereafter until the full amount was paid. On December 8, 1934, the appellant went to the home of the respondent and requested that he go with him to a scrivener, stating that he wanted to make a gift to the respondent of the land described in the land contract. They went to a scrivener and the appellant executed and delivered a warranty deed to the respondent. This deed acknowledged that the appellant had received the sum of $2,200 and contained the further statement that "this deed is given in fulfilment of a contract dated July 12, 1930, and recorded in Volume 104 of Deeds, page 55, in Marinette county records," which was the land contract formerly entered into between the parties. At the time of the execution of the land contract, separate notes were given by the respondent to the appellant. These notes were not canceled and delivered to the respondent at the time the deed was executed. Respondent had paid the notes that were due between the time of the execution of the land contract and the deed. Appellant testified that he gave respondent the deed because his daughter was in trouble in Milwaukee. She owed a bill and he understood that they were going to force him to pay it. He informed his son of this fact after the deed had been executed, and on the trip home. After the deed had been executed, appellant informed a son and daughter-in-law that he had given the forty acres to the respondent, stating that he figured he would lose it anyway, so he gave the land to the son. No payments were made after the execution of the deed, nor were they demanded for a period of nearly six years.
The evidence is undisputed that the appellant went to the home of the respondent and requested that he accompany him to a scrivener for the purpose of deeding the land in question to him, and the deed was executed in accordance with the directions of the appellant. All acts by the appellant were free and voluntary on his part. There is no evidence that the respondent in any way requested that the premises be deeded to him or that he made any promise to induce the execution of this deed. Appellant had the right to make a gift to his son if he desired to do so. He informed his son that he was giving him this property, and informed others that he had done so. The deed recited full payment and makes specific reference to the land contract.
The question to be determined is, "What was the intention of the appellant at the time of the execution of the deed?" In order to make this determination we have the deed and the conduct of the appellant after its execution. Our court has held that deeds, like other instruments, should be construed so as to arrive at the intention of the parties. If there is no ambiguity, this must be arrived at from the language used, and effect should be given to all of the provisions, if that is possible without doing violence to the language used. Polebitzke v. John Week L. Co. 157 Wis. 377, 147 N.W. 703. The deed is clear and unambiguous. Appellant acknowledges receipt of the payment of the purchase price, and the instrument shows that it is a conveyance of the specific property described in the land contract. Appellant made no claim or demand for further payments after the deed was executed for a period of nearly six years. He informed members of his family that he had conveyed the property to the respondent. He was fearful that he might be required to pay an obligation of one of his children if he retained this property. All of this points to one conclusion, and that is that it was his intention to make a gift of this property to the respondent at the time of the execution of the deed.
We are confronted with a further rule of law in this case. Assuming the testimony of the appellant is correct, that he made this conveyance for the purpose of avoiding an obligation for which he felt he might be held liable, it was then a fraudulent conveyance, and this appellant is in no position to come into court and ask for relief as a participant in a fraudulent conveyance. It is a fundamental rule of law that the court will not protect a party to litigation who has perpetrated a fraud on another in connection with the matter in litigation. 23 Am. Jur. p. 1002, sec. 182. By his own testimony he intended to defeat the claim by making this conveyance, and he now asks the court for relief from the fraud which he perpetrated. He has not come before the court with clean hands.
The evidence is sufficient to sustain the finding of the lower court on the ground that a gift had been made by appellant, which canceled the indebtedness. The decision must also be affirmed upon the further ground that everyone who engages in the fraud scheme forfeits all rights to protection, either at law or in equity.
By the Court. — Judgment affirmed.