STATE ex rel. METROPOLITAN PLATE-
GLASS INS. CO. OF NEW YORK v.
FRICKE, Commissioner of Insurance.
(Supreme Court of Wisconsin. Dec. 16, 1898.)
PLATE-GLASS INSURANCE-LICENSE FEES.

A company engaged in the business of insuring against injuries to plate glass from causes other than fire transacts the business of "accidental insurance," within Rev. St. 1898. § 1220, imposing an annual license fee of $300 on every such company, in view of section 1978, precluding a company from doing any insurance business except according to the conditions of the statutes, and Laws 1880, c. 105, authorizing "accident insurance companies" to insure against injuries to property by causes other than fire and lightning.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Petition for mandamus, on the relation of the Metropolitan Plate-Glass Insurance Company of New York, against William A. Fricke, commissioner of insurance. Judgment for defendant, and relator appeals. Affirmed.

This case differs from the preceding case of State ex rel. Fidelity & Casualty Co. v. Fricke, 77 N. W. 732, only in that the relator is a corporation organized for and engaged in only the business of insuring plate glass against injury otherwise than by fire. Said relator commenced business in the state of Wisconsin in 1884, and has annually thenceforward paid to the commissioner of insurance 2 per cent. on its gross premiums received in this state, including those received in 1897, and has applied for a license to do business for the year beginning March 1, 1898. The commissioner of insurance now claims that in each of said years from 1884 to 1898 said company should also have paid the license fee of $300 required by section 1220, Rev. St. 1898, from all companies engaged in the business of accidental insurance in the state of Wisconsin, and on March 18, 1898, refused to issue a license for the ensuing year, unless said license fees, amounting with interest from the dates when they were respectively due to $6,540, were paid. The relator in this action prays for a writ of mandamus requiring the respondent, as commissioner of insurance, to issue to said corporation a license authorizing it to do the business of plate-glass insurance within the state of Wisconsin during the period of one year, commencing March 1, 1898, and offers to pay whatever sum the court may decide is legally due.

Winkler, Flanders, Smith, Bottum & Vilas, for appellant. W. H. Mylrea and J. L. Erdall, for respondent.

DODGE, J. (after stating the facts). It is, of course, unnecessary, again, in this case, to discuss the questions disposed of in the Fidelity & Casualty Company Case. That accident insurance companies were required by the statutes existing in March of the present year to pay, not only 2 per cent. on the

gross premiums received during the year 1897, but also a license fee of $300, is established, as also the conclusion that this court will not by mandamus restrain the commissioner from making the payment of any delinquent fees for past years, together with interest thereon, a condition of issuing a license, whether or not an action to recover any such fees would be barred by the statute of limitations. The relator strenuously contends, however, that even though such conclusion be reached with reference to the Fidelity & Casualty Company, engaged in the business of insuring against death or injury from accidents to the person of the assured, yet a clear distinction exists in favor of the present corporation, which can and does only insure against injuries to plate glass from causes other than fire; insisting that such a company does not come within the description of section 1220, imposing a $300 license fee on "every company transacting the business of life or accidental insurance in this state"; arguing with much force, and much support from the authorities, that at and prior to the year 1878, when section 1220 was adopted as a revision of statutes existing since 1870, the words "accident insurance" or "accidental insurance" did not embrace anything besides insurance against accidents to the person insured,-citing to this proposition Beach, Ins. § 211, to which might be added Bouv. Law Dict. (1897) p. 1076; Assurance Corp. v. Merrill, 155 Mass. 404, 29 N. E. 529. If it be conceded, however, that section 1220, which imposes the $300 license fee upon every company doing the business of accident insurance in this state, would not, when enacted, have applied to the relator, it follows that the relator could not at that time have engaged in its peculiar business in the state of Wisconsin. Section 1978 provided: "No corporation, association, partnership or Individual shall do any business of insurance of any kind, or make any guaranty, contract or pledge for the payment of annuities or endowments or money to the families or representatives of any policy or certificate holder, or the like, in this state or with any resident of this state except according to the conditions and restrictions of these statutes. And the term insurance corporation as used in this chapter may be taken to embrace every corporation, association, partnership or individual engaging in any such business." It could not be contended that any other section than 1220 could be so applicable to the business of plate-glass insurance as to authorize its conduct in the state. By chapter 105, Laws 1880, "accident insurance companies" were authorized to insure against injuries to property by causes other than fire or lightning; and no other statute is pointed out, or believed to exist, which could authorize the conduct of the relator's business in the state from that time until the Wisconsin statutes of 1898. It must be assumed, therefore, that its applications for licenses from 1884 on

It

ward have been made and granted under the authority of the last-mentioned statute. will be observed, however, that chapter 105, Laws 1880, authorizes this kind of business to be done only by "accident insurance companies," which expression is, of course, to have the same meaning as elsewhere in the insurance statutes; this act of 1880 being not an isolated piece of legislation, but part of a system of statutory regulation of insurance business. We seem, therefore, to be driven into a dilemma which may be stated as follows: If a company transacting only the business of insuring plate glass against injury from causes other than fire or lightning is an accident insurance company, within the meaning of the insurance regulations, then section 1220 of the Revised Statutes has required that it pay each year a license fee of $300. If, however, such a company is not an accident insurance company, it has no authority to conduct its business in this state. Being driven into this dilemma, we have next to consider which horn of it to choose,whether to decide that the expression "accident insurance companies," in chapter 105, Laws 1880, was used in a strictly limited sense, meaning only companies which are engaged in the business of insuring against accidents to the person of the assured, and is an authority only to that class of companies to do the additional business of insurance against injuries to property from causes other than fire, or to hold that the legislature in 1880 meant to legislate that all of said varieties of insurance should come under the classification of accidental insurance, and might be written in this state by any corporation authorized so to do by its charter, whether also authorized to write insurance for personal accidents as well or not. It would seem, in view of the development of the business apparent from the records in the office of the commissioner of insurance, and from the showing of this relator, that the interests of the citizens of Wisconsin demanded plate-glass insurance, and we may therefore infer that the legislature in 1880 meant to recognize and provide for this demand. In order to accomplish that result fully, the latter construction is necessary, namely, that a company authorized by its charter merely to write insurance against injuries to property by causes other than fire is authorized to do business in this state, and, as a result, that it is legislatively declared to be an accident insurance company, within the meaning of our statutes. The adoption of this construction of the statute does no violence to its language. Accident insurance, colloquially, easily includes insurance against injuries to plate glass. Nor is it one of which the relator certainly can complain, for ever since 1884 that company has availed itself of the privilege of doing business in this state, and can have found its authority nowhere save in such a construction of this statute of 1880. The relator is there

fore in the same position, and subject to the same charges, as the Fidelity & Casualty Company, and was required by law to pay each year, not only 2 per cent. on its gross premiums received in this state, but also, on or before March 1st of each year, a license fee of $300. The circuit court was right in refusing a peremptory writ of mandamus to compel issue of license until these annual fees be paid, with interest, from the several dates when they were respectively due by law. The judgment of the circuit court is affirmed.

ZIMMERMAN v. BANNON et al. (Supreme Court of Wisconsin. Dec. 16, 1898.) FRAUDULENT CONVEYANCE-CONSIDERATIONWEIGHT OF EVIDENCE.

1. Defendant agreed to give his share in a farm to his sister for her services in keeping house for him and his brothers, but nothing was done towards carrying out the agreement until eight years thereafter, when, after defendant was sued, and without any demand from his sister, he executed a mortgage thereon to her, which she received with notice of the action, for no other consideration than the prior agreement. Held, that the mortgage was given with intent to hinder and delay creditors, and was therefore void.

2. Courts are not bound to accept testimony as true which is improbable or impeached by attendant circumstances, because there is no direct testimony contradicting it.

3. Rev. St. 1878, § 2320, avoids every conveyance made with intent to delay or defraud creditors, without regard to whether they are existing or subsequent creditors.

4. Where a court found that a mortgage from a brother to his sister was fraudulent as to creditors, a finding requested that he had agreed to convey the property to her in payment for services is immaterial, since the mortgage, if.given, with the grantee's knowledge, to hinder creditors, is none the less void because given to secure a valid debt.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by A. G. Zimmerman, as receiver, in supplementary proceedings, etc., against Patrick H. Bannon and another, to set aside a mortgage as fraudulent as to creditors. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

On April 21, 1898, one Blanche E. Palmer recovered a judgment of $5,500 in the circuit court of Dane county against the defendant Patrick H. Bannon, in an action to recover damages for seduction and breach of promise of marriage. An execution was duly issued, and returned unsatisfied. Proceedings supplementary to execution were commenced, which resulted in the appointment of plaintiff as receiver of Bannon's property. At that time Bannon was the owner of a onesixth interest of 160 acres of land, upon which the Palmer judgment was a lien. A few days prior to the rendition of said judgment, Bannon executed a mortgage thereon to his sister, the defendant Julia Bannon, purporting to secure the payment to her of the sum.

of $700. The receiver brings this action to set aside said mortgage, claiming that it was without consideration, and was executed for the purpose of hindering, delaying, and impeding the collection of any judgment that might be secured in the pending suit. The defendants answered separately, each denying the fraudulent character of the mortgage, and alleging that it was founded upon a good and valuable consideration. The case was tried before the court, who found the facts substantially as stated, and, in addition, that one 40 of the land was Bannon's homestead; that the mortgage was not executed in compliance with any previous understanding between the parties that it should be executed, but was executed by Patrick on his own motion, and the fact of its execution was then communicated to Julia; that Patrick executed the mortgage for the express purpose of hindering, delaying, and defrauding the said Blanche E. Palmer in the collection of any judgment that she might recover; and that the defendant Julia took the same with knowledge of such purpose and intention, and with the intention and for the purpose of aiding Patrick in such fraudulent intention. Judgment was entered setting aside said mortgage so far as it affected any of the property described except the homestead. Both defendants appeal.

Olin & Butler and Bird, Rogers & Bird, for appellants. R. M. La Follette, G. E. Roe, and Rufus B. Smith, for respondent.

BARDEEN, J. (after stating the facts). We are urged to reverse this judgment because the findings are not supported by the evidence. No substantial end will be gained by a review of all the facts tending to support the conclusion reached by the trial judge. A reference to some of the leading facts must suffice. Patrick inherited the property in question from his parents. There were six children. The father died some 36 years ago. The property was held in common, and used for the support of the family. The mother died in 1890. Patrick, Julia, and one or two of the other children lived on the farm, and continued to use it the same as they had done before the mother died. Some time in the spring of 1890, Julia talked of going to Dakota. At this time it is claimed that there was an agreement made between Patrick and Julia which may be best given in the language of the witness Patrick: "Made my share of the farm over to my sister about a week after mother died. I did not and never have executed any writings to my sister making the farm over to her; only this mortgage I gave her. That agreement was made in the spring of 1890. She was to stop there, and keep house for John and me and any of the rest of them that wanted to come home, and I would give her my share of the farm; that is the agreement just as It was made." The parties remained at the

farm, and nothing was done towards carrying out this agreement on the part of Patrick until the execution of the mortgage mentioned. In the spring of 1897, suit was commenced against Patrick, in which large damages were claimed. During the pendency of the suit, he stated to several persons that the plaintiff would never get any of his property, and that he would put it out of the way. After the case had been noticed for trial, he executed and delivered the mortgage to Julia. It is admitted that at the time of the alleged agreement, in 1890, nothing was said as to how long Julia was to stay on the farm, and no value was placed on her services. It appears affirmatively that the matter was never talked of afterwards between them. There is nothing to show that Patrick was under any greater obligation to pay Julia for her services than the other two children who have lived there during a greater part of the time since 1890. The circumstances of the giving of the mortgage were in the highest degree suspicious. The lawsuit was being pressed for trial. Patrick and Julia drove from the farm to Deerfield together, the former being on his way to Madison. While at Deerfield, he went to an attorney's office, had the mortgage drawn up for $700, executed it, took the note to Julia and the mortgage to Madison, and had it recorded. This was done without any talk or consultation with Julia on the subject. There had been no demand on her part that the alleged agreement of 1890 should be carried out; no consultation as to the amount or value of her wages; no agreement that a mortgage should be given for her security in place of a deed. In fact, it seems to have been a spontaneous outburst of brotherly generosity. The defendants claim that it was but the resurrection of the ancient promise. It seems to have come at a time quite opportune to the interest of the Bannon family.

There are many other minor facts and circumstances which have a bearing upon the question at issue, but which need not be stated. They tend largely to impeach the transaction, and throw doubt and suspicion upon it. There can be no doubt but that Julia had full knowledge of the circumstances surrounding Patrick. It is admitted that the lawsuit was somewhat discussed at home. The situation must not be judged from the mere statement of witnesses. Very few cases can be found in the books where the fraudulent designs of parties have been defeated that could not have been decided the other way if the court had depended alone upon the statements of interested parties. Fraud seldom works in daylight. Its ways are hidden and secret. It is usually masked when it appears in the sunlight. It travels incognito. Its outward form is usually honest and virtuous. It is always plausible, and many times deceptive. Because this is so, it is the duty of courts to use the judicial searchlight with great care and prudence.

The identity of this legal bogy is frequently revealed by its environment. Facts and circumstances, small and inconsiderable in themselves, often lead to unerring conclusions. The story of the defendants sounds plausible, but, when tested by the surrounding circumstances, it becomes improbable. Admitted facts are sometimes just as potential to impeach a witness as positive testimony. A court is not bound to accept a statement as true because there is no direct testimony contradicting it. It may be inherently improbable, or it may be impeached by the attendant circumstances. Courts are never bound to accept the statement of a witness which is against all reasonable probability. Roth v. Manufacturing Co., 96 Wis. 615, 71 N. W. 1034; Groesbeck v. Railway Co., 93 Wis. 505, 67 N. W. 1120. The trial court seems to have reached a conclusion amply supported by the facts in the case, and we cannot disturb it. Section 2320, Rev.

St. 1878, says that every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, made with intent to hinder, delay, or defraud creditors of their lawful actions, debts, or demands, shall be void. A conveyance made with intent to delay a subsequent creditor comes within the statute. Hoffman v. Junk, 51 Wis. 613, 8 N. W. 493.

The defendant asked the court to find that Patrick made the agreement to convey to Julia as testified to by him, and that she performed services under such agreement, of the reasonable value of $700. These findings were refused, as being unsupported by the proof and immaterial. Whatever may have been the proper reason for his refusal, these findings became immaterial in view of the findings made. The defendant Julia having participated in Patrick's fraudulent design, and having taken her mortgage with knowledge of his purpose, and in furtherance of it, the fact that Patrick may have justly owed her the full sum of $700, and have given the mortgage as security therefor, did not purge the transaction of its taint It is not the honesty of the debt secured by, but the purpose of, the conveyance, to which the statute has reference. The mortgage in suit is none the less void though given to secure an honest debt, if given and received with intention to hinder and delay creditors. David v. Birchard, 53 Wis. 492, 10 N. W. 557; Sweetser v. Silber, 87 Wis. 102, 58 N. W. 239; Bleiler v. Moore, 94 Wis. 385, 69 N. W. 164. We see no

reason

for disturbing this judgment. The judgment of the circuit court is affirmed.

on duebills to be repaid out of the next monthly installment on the contract price, and who, on July 2d, advanced wages direct to the contractor's workmen, on an estimate then due, and which was in fact made on the 3d of July, did not thereby work a material alteration of the contract, which provided for payment of monthly installments, and thus avoid the obligation of the contractor's surety, so as to permit him to acquire a material man's lien.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by David Stephens against Charles Elver. There was a judgment for defendant, and plaintiff appeals. Affirmed.

On March 6, 1897, one Joseph Pickering contracted with defendant to furnish the necessary materials and do the required mason work in the erection of a brick hotel building on the premises of the latter, in the city of Madison. Such work was to be done according to the plans and specifications prepared by Conover & Porter, architects. The contract price for the materials and work was to be $5,349, and was to be paid in monthly installments,-90 per cent. as the work progressed, on estimates of the superintendent, and the remainder when the work was completed. On the same date, Pickering delivered to defendant a bond, signed by the plaintiff as surety, in the penal sum of $5,000, conditioned that he would carry out the contract, and pay all bills for labor and materials incurred therein. In consideration of plaintiff signing his bond, Pickering agreed to purchase from him the brick, rubblestone, caps, and sills necessary for the building, at prices then agreed upon. Pickering entered upon said work, and from time to time purchased building materials from plaintiff to the amount of $1,202.39, on which he paid $466.31 on July 15, 1897, and no more. The court finds that Pickering completed the contract, and that defendant paid him in full, as provided by the contract, 90 per cent. as the work progressed, on monthly estimates of the architects, and the remainder upon completion and acceptance of the work. The court further finds that, during the progress of the work, Pickering applied to the defendant for certain payments in advance of the estimates, with the knowledge and at the suggestion of the plaintiff, which was refused, and that no payments or advances were in fact made, except they were duly made upon the estimates of the superintendent. During the progress of the work, however, certain transactions occurred between Pickering and defendant, which plaintiff claims substantially varied the terms of the building contract, and operated to release him as surety on said bond. The court made no findings in detail as to these transactions, but the evidence shows that they were based upon the following facts: Pickering commenced work under the contract in May, and the first estimate was made June 1st. Sometime in May, Pickering wanted $600 on the contract, but defendant refused to make any advance. Later he wanted to go to Fond du Lac to see about