Martin vs. Remington and wife.

stated in Hoxie v. Price, 31 Wis. 82, and the authorities in support of it are cited in Horton v. Dewey, 53 Wis. 410.

It is not claimed in the present case that the wife paid anything at the time of the conveyance to her of all the property standing in her husband's name, but it is claimed that the original property out of which these parcels grew was bought with her money, and that thereby there arose a resulting trust in her favor in all the property to which her husband had record title, which trust, though not enforceable under our statutes, has now been fully executed by the husband without fraud, and forms a good consideration for the conveyances; citing Hyde v. Chapman, 33 Wis. 391; Karr v. Washburn, 56 Wis. 303; and Begole v. Hazzard, 81 Wis. 274.

The facts found by the court seem to bring the case within this doctrine. The court found that the money with which the first parcel of real estate was bought was advanced and paid by Mrs. Remington, or (which amounts to the same thing) by Mrs. Connolly for her daughter's benefit; that subsequently Mrs. Remington put $500 additional of her own money into the building of the house upon the property, thus paying all the money which was put into this place out of her separate estate; that she afterwards (acting through her husband as agent) traded this property for other property, receiving some cash, and invested this cash with $400 received from her father's estate in the speculative purchases which afterwards followed, and which resulted in rapid and handsome profits; and that Mr. Remington invested no money of his own in these transactions, but simply took the titles of the property thus paid for by his wife's money, or its increment, in his own name for convenience in the handling thereof. There was undoubtedly sufficient evidence to support these findings of the court, and these facts clearly bring the case within the ancient rule in equity that where,

Martin vs. Remington and wife.

on the purchase of property, title is taken in the name of one person while the consideration is paid by another, not by way of loan to the grantee, a trust results in favor of the person paying the consideration. Dyer v. Dyer, 1 White & T. Lead. Cas. Eq. *203, and notes. And this doctrine applies where the purchase is made by the husband with the wife's separate estate as well as where the parties are strangers. Perry, Trusts, § 127, and cases cited. This trust arose by implication of law from the fact of the advancing of the purchase money, and not by virtue of any agreement of the parties. Bartlett v. Pickersgill, 1 Eden, 515; Bigley v. Jones. 114 Pa. St. 510; Boyer v. Libey, 88 Ind. 235.

True, it may be shown by parol that the money was advanced by way of a loan or as a gift, and the supposed trust thereby defeated; but we have found no evidence in the present case that would warrant us in overruling the conclusions of the trial court on this question.

Therefore there seems no escape from the conclusion, upon the facts found by the trial court, that there would have existed, prior to the passage of sec. 2077, R. S. 1878, a valid resulting trust in the wife in the various parcels of land to which the husband held title during the progress of the real-estate transactions shown by the evidence, and which finally merged into the two parcels of land which were conveyed by Remington to his wife, June 5, 1895. It is true that such trusts are abolished by sec. 2077, R. S. 1878; but it is still held that if the trustee voluntarily carries out and executes the voidable trust by conveying the property, as he is morally bound to do, such conveyance will be founded upon a sufficient consideration, and, in the absence of fraud, will be valid even as against creditors of the trustee. Hyde v. Chapman, 33 Wis. 391; Begole v. Hazzard, 81 Wis. 274. See, also, Strong v. Gordon, 96 Wis. 476.

The trial court has affirmatively found that the conveyances in this case were made in good faith and without

Martin vs. Remington and wife.

fraudulent intent. The evidence is voluminous, and we shall not rehearse it here. While there were circumstances which have a suspicious appearance, and would, perhaps, have justified a different conclusion, we cannot say that the findings are against the weight of the evidence. Nor can it be claimed that there was a mixture or confusion of property of the husband and wife, so as to make the whole liable for the husband's debts. The findings affirmatively show that it was all the property of the wife, though managed through the agency of her husband, and there is sufficient evidence in support of this conclusion. It is certainly true in this case that the wife's property has increased very largely and rapidly, apparently through the sagacity and industry of the husband, but this court has not adopted the rule that such increment can be reached by the creditors of the husband. Mayers v. Kaiser, 85 Wis. 382; Ansorge v. Barth, 88 Wis. 553.

The final claim made by appellant is that the plaintiff purchased the note on the faith of Remington's guaranty, relying on his apparent ownership of the $7,500 mortgage and the Lawndale property, thus raising an estoppel against the wife, as held in Hopkins v. Joyce, 78 Wis. 443. The difficulty with this contention is that the court has found, upon what seems to be sufficient evidence, that the plaintiff did not rely upon such apparent ownership.

There are no other questions raised which seem important enough to require attention.

By the Court.-Judgment affirmed.

Bush and others vs. The State ex rel. Boyle.

BUSH, Mayor, and others, Plaintiffs in error, vs. THE STATE EX REL. BOYLE, Defendant in error.

September 20-October 11, 1898.

Municipal corporations: Elections: Statute construed.

Under sec. 1, ch. 70, Laws of 1897,-providing that in cities of the fourth class certain officers shall be elective if a petition asking therefor be filed fifteen days prior to any regular election, "signed by a majority of the electors of such city who voted at the last general election then next preceding, as appears from the poll list,”—such petition must be signed by a majority of the persons whose names appear upon the poll list of electors who voted at the last preceding general election.

ERROR to review a judgment of the superior court of Milwaukee county: GEO. E. SUTHERLAND, Judge. Reversed.

This was a proceeding by mandamus, sued out of the superior court of Milwaukee county, directed to the plaintiffs in error, as mayor, members of the common council, and city clerk of the city of South Milwaukee, requiring them to proceed and give notice of, call for, and order, the election at the then next succeeding regular municipal election of said city, to be held April 5, 1898, of the following named officers, to wit, city attorney, city physician, chief of police, and street commissioner. The relation and writ alleged, among other things, that the city of South Milwaukee was a municipal corporation and a city of the fourth class, organized under the general city charter law of the state (Laws of 1889, ch. 326, and amendments thereto), and received its patent as such city July 6, 1897; that it was the legal successor of the late village of South Milwaukee, and no general election had been held in said city since its incorporation; that on the 16th of March, 1898, fifteen days or more next prior to the next regular municipal election to be held in said city, April 5, 1898, a petition was filed in the city clerk's office, and laid before the common council, signed by a majority of the elect

Bush and others vs. The State ex rel. Boyle.

ors of the city who voted at the last general election so held in said village, "as appears from the poll list," asking that said five offices of city clerk, etc., be made elective, and that the officers therefor be elected at such municipal election to be held April 5th, and asking the common council and proper officers to proceed and give notice of, call for, and order the election of such officers at such election; that said petitioners were 353 in number, and constituted more than a majority of the electors of the city who voted at the last general election then next preceding, "as appears from the poll list," and that they remained such electors; that, notwithstanding the presentation of such petition, the common council wholly ignored the petition and its subject matter, and gave out that it would continue so to do, and that it would not regard such petition.

The respondents moved to quash the alternative writ, on the ground that it was prematurely issued, and because it did not state facts sufficient to entitle the relator to the relief sought. This motion was overruled.

The writ was sued out under sec. 1, ch. 70, Laws of 1897, providing that, "in cities of the fourth class, the city clerk, and any and all other officers, in addition to those hereinbefore specified, may be elected by the qualified electors, at the same time and in the same manner other officers are elected, upon a petition asking therefor being filed in the office of the city clerk fifteen days prior to any regular election, signed by a majority of the electors of such city who voted at the last general election then next preceding, as appears from the poll list." The statute further provided that, upon like petition signed by a majority of the electors asking therefor, any common council "may provide for the appointment by the mayor, with the concurrence of the common council, of any officers of such city excepting the offices of mayor, alderman, assessor, treasurer, supervisor or justice of the peace."