#### Hopkins and another, Respondents, vs. Joyce and wife, imp., Appellants.

*December 17, 1890*

January *13, 1891.*

*Debtor and creditor: Fraudulent conveyance: Husband and wife: Estop-pel: False representations through third person: Creditors' suit: Exhaustion of legal remedy.*

1. The equitable title to a lot was in the wife, but she permitted the legal title to remain in her husband, *“*because of business conveniences and considerations.” The plaintiffs gave credit to the husband, relying upon his statement that he was the owner of the lot. After-wards the husband and wife exchanged the lot for others, which were conveyed directly to the wife. *Held,*that this was a fraud upon the plaintiffs, and that in a creditors’ suit they might subject the new lots to the payment of the husband’s debt. As against them the wife is estopped to assert her title, although she intended no fraud.

2. When the husband applied for credit, he stated that he had plenty of means to pay, and referred the plaintiffs to a third person for particulars. The person thus referred to stated that the husband owned the lot. *Held,*that this was equivalent to a like statement by the husband himself.

3. The issuance of an execution and its return unsatisfied by the proper officer is a sufficient exhaustion of legal remedies to warrant the bringing of a creditors’ suit in equity.

APPEAL from tbe Circuit Court for *MUwcmkee*County.

Tbe action is in tbe nature of a creditors’ suit to subject certain lots in tbe city of Milwaukee (tbe record title to wbicb is in tbe defendant *Alice M. Joyce)*to tbe lien of a certain judgment of tbe plaintiffs against tbe defendant *Gilbert S. Joyce.*

Tbe testimony satisfactorily shows that before and at tbe time *Gilbert S.*contracted tbe indebtedness to plaintiffs for wbicb tbeir judgment against bim was recovered be was tbe owner of another lot in that city (wbicb for convenience will be designated as lot 2), and that about the time such *444judgment was obtained be and bis wife conveyed tbe same to one Mapes, wbo, in exchange therefor, conveyed to *Mrs. Joyce*tbe lots in controversy. Plaintiffs gave credit to *Gilbert S.,*and rendered him professional services as attorneys at law, in reliance upon bis statement to them that be was tbe owner of lot 2.

, *Mrs. Joyce*claimed to be tbe real owner of lot 2, but it appears she knew tbe title thereto wTas in her husband, and permitted it so to remain “ because of business conveniences and considerations,” as she and her husband state in their answer.

Tbe circuit judge found tbe facts as above stated; also tbe return of an execution issued upon plaintiffs’ judgment unsatisfied; and further, that if *Mrs. Joyce*was tbe equitable owner of lot 2 she could not, under tbe circumstances of tbe case, be beard to assert such ownership against tbe superior equities of tbe plaintiffs. Judgment was accordingly awarded and duly entered subjecting tbe lots conveyed by Mapes to *Mrs. Joyce*to tbe lien of plaintiffs’ judgment against *Gilbert S.*Joyce, as prayed in tbe complaint.

Tbe defendant Ulrich bolds a mortgage on tbe Mapes lots executed to him by *Joyce*and wife after tbe lots were thus conveyed to *Mrs. Joyce.*He took bis mortgage with full notice of plaintiffs’ equities, and has made no defense to tbe action. Tbe defendants *Joyce*appeal from tbe judgment.

For tbe appellants tbe cause was submitted on tbe brief of *Peter Doyle.*

For tbe respondents there was a brief by *Mophms ds*Wambold, attorneys, and *J. 0. McKenney,*of counsel, and oral argument by *H. A. Wambold.*

LtoN, *J.*

The case involves no disputed proposition of law, but turns entirely upon tbe facts. These are few, and are clearly proved, as found by tbe court. Tbe inevitable *445deduction from them is that the plaintiffs are entitled to the relief demanded, which the circuit court gave them.

A few points made in argument will be briefly noticed. The learned counsel for appellants seems to think the plaintiffs cannot prevail in the action unless they show that *Mrs. Joyce*was an active participant in some scheme of fraud known to her to be such. This is clearly a mistake. ¥e do not suppose she ever had a thought of defrauding any person, but she confided in her husband and allowed him to. retain the title to lot 2, and deal with the lot as his dwn, merely because he desired her to do so, without a thought or suspicion that he would so deal with it as to raise equities in others superior to her own. But having voluntarily put it in the power of her husband to do so, and he having done so, it would be a fraud upon those who dealt with him on the faith of his apparent ownership of the lot to permit her now to assert her alleged equitable interest in the lot. The circuit court so held.

It is said also that *Gilbert 8. Joyce*did not represent to plaintiffs that he owned lot 2. This is probably true. It satisfactorily appears, however, that he stated to them when he applied for credit that he was in good circumstances — had plenty of means to pay them for any professional services they might render him,— and referred them to a certain other person for the particulars of his property and financial condition. They thereupon applied to such person, who informed them that he, Joyce, owned lot 2. It seems that such lot was substantially all the property *Joyce*had. The appellants are bound by the statements of the person to whom *Joyce*thus referred the plaintiffs. *Mrs. Joyce*acted through her husband, and both of them through the person who gave the information. *Quifacitper almm facit per se.*

It is further argued that before the plaintiffs can resort to a creditors’ suit they must exhaust all legal remedies to *446collect their judgment. This is correct. But when, as in this case, they have issued execution upon their judgment, and the same is returned unsatisfied by the proper officer, this requirement is complied with, and the equitable action may be maintained. E. S. sec. 3029.

*By the Oowrt —*The judgment of the circuit court is affirmed.