#### Cunningham, Appellant, vs. Eagan, Garnishee, Respondent.

*February 1*

February *21, 1899.*

*Debtor and creditor: Fraudulent conveyances: Garnishment.*

The principal defendants owed their father about $2,100, and others about $6,000. To secure the debt to their father one of them gave him a mortgage on a stock of goods worth about $1,500, but remained in possession. The other transferred, by absolute bill of sale, and delivei’ed to the father a stock of goods for an expressed consideration of $1,552, which was about their actual value, though their inventory price was about $2,000. This transfer was claimed by the son to be a payment *pro tanto,*but by the father to be as security only. Afterwards plaintiff obtained a judgment against the sons, and garnished the father. *Held,*that the transaction stated did not justify an inference of fraud which would render the father liable as garnishee in respect to the goods delivered to him.

Appeal from a judgment of tbe circuit court for Ashland county: JohN K. Pabish, Circuit Judge.

*Affirmed.*

Barney and Michael Eagan, indebted to their father, the respondent, in the sum of §2,100, and to others in about the sum of $6,000, had each a stock of goods. Michael Eagan executed a chattel mortgage to his father on his stock, worth about $1,500, to secure said sum of $2,100, the goods remaining in the mortgagor’s possession. On the same day, or the following, Barney transferred to his father, by absolute bill of sale and delivery, his stock of goods, then removed to Ashland, for the expressed consideration of $1,552, which was seventy-five per cent, of their inventory price. He testified that the transfer was an absolute one in payment yw *tcmto*upon said indebtedness. Shortly afterwards, the plaintiff, having obtained judgment against Barney and Michael Eagan, garnished the respondent, who answered, denying liability. The suit was tried in the circuit court for Ashland county with a jury. Barney testified substantially to the foregoing facts. The garnishee testified that the bill of sale from Barney was a security, and not in payment, and that, although the mort*273gage from Michael was executed tbe day before, they were both intended as the same transaction, namely, to secure the $2,100. At the close of the testimony, the court, on respondent’s motion, granted a nonsuit, and judgment thereon, from which the plaintiff appeals.

Eor the appellant there was a brief by *J. J.*Miles, and oral argument by *Burr W. Jones.*

Eor the respondent there was a brief by *TomMns & Merrill,*and oral argument by *Geo. F. Merrill.*

Dodge, J.

The facts are without dispute, except as to whether Barney Eagan’s transfer was absolute or -as security. The fact of the indebtedness from Barney and Michael Eagan to their father in about the sum of $2,100 is clear. The only property of either which is shown to have actually come to the possession of the garnishee is Barney’s stock, which, at inventory price, did not exceed $2,000, and was of actual value about $1,550. Its transfer to the father was accompanied by immediate possession; and whether, as testified by Barney, it was an absolute conveyance in payment *jpro tanto,*or, as understood by the garnishee, was a delivery as security, there is nothing in the transaction to justify inference of fraud. It was less than the amount of the debt, so that no surplus could remain in his hands to be subject to garnishment. Michael’s stock was not in the garnishee’s possession, but was subject to levy by the plaintiff. Of course, as against such levy, the garnishee’s mortgage could stand only for the balance of the $2,100 debt not paid by Barney’s transfer,— $1,550 if absolute, or the proceeds of the stock if as security. There is, therefore, no evidence tending to prove either that the garnishee is indebted to, or has property in his possession or under his control belonging to, the principal defendants. *Carey v. Dyer,*97 Wis. 554.

*By the*Court.— Judgment affirmed.