or street. In Livingston v. Mayor, etc., 8 Wend. 99, it is said: "The grant of a building lot in the city described in the conveyance, or in the town plat to which it refers as bounded by streets or alleys of a certain width, implies a right in the grantee to have the street kept open in front of his lot for the benefit of light and air, as well as for a mere passage to and from the premises. If it is bounded by a street or alley in the rear, the grantee is entitled to have that kept open, also for the same purpose of light and air, as well as for a necessary passage to the rear of his building, or to his garden or stables." Time, though often a very material ingredient in the evidence, is not an indispensable ingredient in the evidence. "It is not like a grant presumed from length

of time. If the act of dedication is unequivocal it may take place immediately." This rule of law as to what constitutes a dedication has so often been approved by this court that it is only necessary to refer to a few of the decisions. Orton v. Harvey, 23 Wis. 99-111; Warden v. Blakley, 32 Wis. 690; Barteau v. West, 23 Wis. 416; Buchanan v. Curtis, 25 Wis. 99; and Pettibone v. Hamilton, supra.

If, in the case at bar, the plaintiff had purchased his lot of Schwartz, and, in the description in the deed, it had referred to a plat of lots 6, 7, and 8, and the strip of land south, 40 feet wide, extending from Stafford street west to and showing an alley 12 feet wide between the 40 feet strip and the south end of said lots, extending from the west line of lot 8 to Stafford street, it seems very clear, upon authority, there would be such a dedication of such 12foot strip as an alley for the use of the owners of the adjoining lots as would effectually estop Schwartz and those claiming under him from closing up such alley. But the evidence of dedication in this case seem to me fully as strong as though the deeds had referred to a plat of the lots showing such alley. If there can be any dedication of the alley in question in this case, then it cannot be, I think, successfully contended that the evidence in the case did not show a dedication of the alley in question. The evidence shows that Schwartz not only declared that there should be an alley in the rear of the lot sold to Fisher 12 feet in width, extending east to Stafford street, for the use of all the adjoining lots, but he repeated that declaration when he sold the lot to Behnke, and afterwards assisted in grading the alley, and making it passable for travel to Stafford street on the rear of the lots owned by him; and such alley, so prepared for use, was in fact used for more than three years by Fischer and Behnke, and all others who, in their business relations with Fischer and Behnke, desired to use it. The evidence of an intent to dedicate this alley for the use of the adjoining owners is much stronger than in the case of Buchanan v. Curtis, 25 Wis. 99.

The circuit judge was certainly justified in finding, upon the evidence, that there had been a dedication of this alley for the purposes indicated; and, as shown above, such use was so far a public use as to make the law of dedication applicable to

the alley in question. There was also sufficient evidence to show that the defendant Laack had notice of the existence of such alley when he bought the remainder of the property from Schwartz. I think the judgment of the circuit court should be affirmed.

(76 Wis. 439) WADLEIGH V. STANDARD LIFE & ACCIDENT INS. Co.

(Supreme Court of Wisconsin. April 8, 1890.) REMOVAL OF CAUSES-APPEAL-FINAL ORDER.

1. A party may waive his right to remove his cause from a state to a federal court; and where he has filed a petition and bond for that purpose, but the record has not yet been sent to the federal court, he should be permitted to withdraw them upon giving due notice to his adversary.

2. Rev. St. Wis. § 3069, provides that any order is appealable which affects a substantial right, so as to determine the action, and prevent a judgment from which an appeal might be taken. Held, that an order denying an application to withdraw a petition and bond for the removal of the cause to a federal court is appealable thereunder.

Appeal from circuit court, Portage county.

S. W. Pinney, C. W. Felker, and Frank C. Stewart, for appellant. Raymond & Brennan, for respondent.

COLE, C. J. With its answer the defendant's attorney filed in the office of the clerk of the circuit court, in vacation, on August 2, 1889, a petition and bond for the removal of this cause to the circuit court of the United States for the western district of Wisconsin. On August 21, 1889, the defendant's attorney served on the attorney for the plaintiff a notice in writing that the petition and bond for the removal of the cause were withdrawn; that no steps would be taken to remove the cause to the United States court; and that, at the opening of the state court at the next term thereof, the defendant would move the court for leave to withdraw said petition, and to permit the case to proceed in the state court. This notice was filed with the clerk of the circuit court, September 21, 1889. Accordingly, at the next term of the circuit court for Portage county, the attorney for the defendant appeared and asked the court not to approve of the bond, but to grant leave to withdraw such bond and the petition for removal, basing such application on the notice to the plaintiff previously served and filed, and on the affidavits of its attorney, to the effect that the petition and bond for removal were made by him on his own motion, and that no officer or agent of the defendant had authorized him to remove, or take steps to remove, the cause to the federal court. The circuit court denied the request of the defendant to withdraw the petition and bond for removal of the cause to the federal court, on the ground that it had no jurisdiction to grant the same. grant the same. From that order this appeal is taken. And the question is, could the defendant waive and renounce its right to remove the cause to the United States court, and consent to the cause proceeding in the state court. We confess we are unable to perceive any ground or reason for holding that it could not waive such a

legal right established in its favor. The right of removal to a federal court only concerns the defendant. It involves no principle of public policy that we can see, and we are unable to see any sound reason for saying that the defendant could not waive its right to such removal. It is not like the case of Morse v. Insurance Co., 30 Wis. 496, 20 Wall. 445, where it was held by the supreme court of the United States that a general stipulation in advance of a controversy not to remove a cause to a federal court did not deprive the defendant corporation of the right of removal under the constitution and laws of the United States. It was said by the court that a party could not bind himself in advance by an agreement which may be specifically enforced to forfeit his rights at all times and on all occasions when the case may be presented, but here the defendant sought to waive and relinquish its right of removal in the suit itself, and to suffer it to proceed in the state court. The learned counsel for the appellant say this waiver of the right to resort to the federal court in this particular case only concerns the defendant, and that it rests upon the maxim that a man may renounce a legal right which is conferred for his own advantage, where the waiver touches no question of public policy. This view seems to us eminently sound, and is consonant with principle and good sense. If any authority were necessary to sustain so plain a proposition of law, it will be found in Bank v. Smith, 13 Blatchf. 224; Insurance Co. v. Curtis, 32 Mich. 403; Bank v. Conway, 67 Wis. 210, 30 N. W. Rep. 215; Dill. Rem. Čauses, § 154. A question has sometimes been raised whether a party, by contesting a cause in the state court, after it has erroneously refused to grant the application for removal, waives any right. The supreme court has held that, if a state court wrongfully refuses to give up its jurisdiction on a petition for a removal, and forces a party to trial, he loses none of his rights by remaining and contesting the case on its merits. Railroad Co. v. Koontz, 104 U. S. 5. This seems to be holding to a somewhat different rule from the one which is often applied, that a party, by his subsequent conduct in the case, waives his right to insist upon an error against him which may have intervened in some preliminary matter; but we have no intention to question the correctness of the decision of the supreme court upon the points indicated, but willingly yield it our obedience. We do not know of any case where it is held that a party may not expressly relinquish the right to resort to a federal court, where he waives such right in the suit itself, and consents to the state court proceeding with the cause. There is no waiver here by implication, but what is equivalent to a distinct and unqualified relinquishment of the right of removal in writing, and request to withdraw the petition filed for that purpose. We are clearly of the opinion the application should have been granted. It is said that, as a proper petition and bond had been filed, entitling the defendant to a removal, the rightful jurisdiction of the state court over the

cause was at an end, and that no further proceedings could properly be had in that court, not even to grant the request that its jurisdiction should be restored. We cannot adopt that view of the law. Consent would surely restore the jurisdiction of the state court over the cause, and place it in the same position it would have stood if the defendant had omitted to exercise its right to remove it to a federal court. It seems to us this proposition cannot be successfully controverted. There had been no transcript of the record sent to the federal court, but it remained on file in the state court. The defendant, under the circumstances, did all it could to actually restore to the latter court full jurisdiction over the cause, and the court should have granted its application to withdraw its petition for a removal, which had been inadvertently filed. was not in the power of the defendant to do anything more to restore the jurisdiction of the state court over the cause, and we have no doubt but the jurisdiction of that court was as complete over it as though no attempt had been made to transfer the suit to the federal court. Whatever rights the defendant may have acquired by the filing of its petition and bond, it could, and certainly did, renounce and waive by express language and positive consent.

It

A question was suggested on the argument whether the order affected any substantial right, so as to make it appealable. The circuit court denied the application to withdraw the petition, on the ground that it had no jurisdiction to grant it. The learned circuit court undoubtedly held that the cause had been transferred to the federal court, and that it had no authority to proceed or act in the matter. Its view would have been correct had not its jurisdiction been restored by the acts of the defendant. But the fact that the court entertained the view that the cause had been removed to the federal court would, of course, prevent the defendant from taking any further steps to dispose of it. It was of the greatest moment to the parties to know whether the state court could proceed and try the case, and the decision that it had no power to do so necessarily involved the question of the very existence of the action in that court, and this further necessarily involved the merits, for if what the defendant had done operated to divest the federal court of jurisdiction, and restore that of the state court, it was of importance for the defendant to know certainly what court it was in. We therefore think that the order affected a substantial right, and was appealable. Akerly v. Vilas, 24 Wis. 165; McLeod v. Bertschy, 33 Wis. 176. The order of the circuit court is reversed, and the cause is remanded for further proceedings according to this opinion.

(76 Wis. 418)

MARSTON et al. v. DRESEN et al. (Supreme Court of Wisconsin. April 8, 1890.) FRAUDULENT CONVEYANCES-PLEADING. 1. In a suit to set aside a fraudulent convey. ance of property, a complaint which, after stating

the facts constituting the alleged fraud, describes as separate causes of action five distinct transfers, in reality sets out but one cause of action, and each so-called "cause" will not be required to stand or fall by itself.

2. A complaint which avers that the defendant owned certain property when the debt was contracted, that he transferred it to his wife without consideration, and that he was heavily in debt when he did so, states facts sufficient to maintain the allegations of fraud.

3. A complaint sufficiently complies with Cir. Ct. Rules Wis., subd. 1, rule 28, when it states the amount due on the judgment, and sets forth facts from which it is apparent that there is no collusion between the parties to the action, and that plaintiffs are prosecuting it for the sole purpose of satisfying their judgment.

Appeal from circuit court, La Crosse county.

Suit by Daniel Marston and Daniel W. Marston to set aside certain conveyances and transfers of property made by Hubert Dresen to Josephine Dresen, his wife, on the ground that such transfers were made in fraud of the rights of creditors. Defendants appeal.

Paul W. Mahoney, (Bleekman Tourtelotte & Bloomingdale, of counsel,) for appellants. Winter, Esch & Winter, for respondents.

COLE, C. J. We do not see any valid objection to the complaint in this action. As we understand it, it is in the nature of a creditor's suit under the old practice, and is expressly authorized by section 3029, Rev. St. It appears from the complaint that the plaintiffs recovered a judgment against the defendant Dresen and one Fjelstad, his partner, in November, 1888, for $910.81, and that an execution has been issued upon the judgment which has been returned wholly unsatisfied. It is alleged that the debt for which the judgment was obtained was contracted solely on the credit of Hubert Dresen, as the other judgment creditor was known to be irresponsible, while Dresen owned a large amount of real estate, and considerable personal property in the form of mortgages on real estate. The complaint then proceeds to state a number of conveyances of real estate and transfers of mortgages which were made by Dresen at different times to his wife, Josephine Dresen, all of which conveyances and transfers, it is alleged, were without consideration, and were made by Dresen, when heavily indebted, for the purpose of defrauding creditors, and especially the plaintiffs, which fraudulent purpose the wife well knew and participated in. These different transfers of property are described in the complaint as First, second, third, fourth, and fifth causes of action," and it is objected that each count or paragraph, by itself, unless aided by other facts or allegations, does not state a good cause of action. But we think, properly speaking, there is but one cause of action set forth and relied on, viz., an equitable suit to set aside conveyances and transfers of property made by a debtor in fraud of his creditors. These conveyances are obstructions in the way of collecting a judgment by the ordinary process of execution, and hence resort is had to a court of equity to remove them, or have them declared void as against

creditors. The remedy on the execution has been exhausted, and now it is sought to remove fraudulent obstructions from real property which is held in trust for the judgment debtor, if the facts stated are true, for it requires no argument to support the proposition that a debtor cannot give away all his property to his wife to defraud existing creditors; and the intended fraud, both on the part of the grantor and grantee, is distinctly alleged in the complaint. According to our view, the action is brought to cancel fraudulent conveyances, and to reach choses in action for the benefit of creditors, where the remedy by execution has proven ineffectual; and the complaint really states but one cause of action. It may have been unnecessary to particularly describe each of the conveyances which is claimed to be fraudulent, and which it is sought to set aside or impeach; but the fact that each is set forth in a separate paragraph as constituting a separate cause of action does not render the complaint bad, or prejudice the defendants. There is but one cause of action stated, which is an equitable suit to reach equitable and other interests really belonging to the judgment debtor, and to set aside fraudulent conveyances and obstructions to a levy and sale on execution. The facts show a fraudulent disposition of property by the judgment debtor, and it is alleged that neither of the judgment debtors has any other property than that embraced in the conveyances and .transfers out of which the plaintiffs' judgment could be satisfied in whole or in part. Consequently, when applied to this case, there is no force in the objection that the pleader has undertaken to state five separate and distinct causes of action in the complaint, and that each count or paragraph must stand or fall upon its own merits, and cannot be aided by facts set forth in the other paragraphs. That rule of pleading has no application whatever to this case, since there is but one cause of action stated. In the ninth paragraph it is stated that Mrs. Dresen claims to have had, previous to the pretended conveyances to her, some right or interest to the real estate and mortgages transferred to her, which claim the plaintiffs believe to be false and fraudulent. It is said that such a claim, existing in good faith, would form in itself a valid and sufficient consideration to support the conveyances. Whether this would be so or not, it is evident, if the conveyances and assignments of the mortgages were made to defraud creditors, and the husband and wife acted in concert in the fraudulent transactions, the conveyances are void as to such creditors. But it is objected that no facts are stated showing fraud, or the fraudulent intent of the parties, in making these conveyances and transfers of property. It is true, it is stated in general language that the conveyances were fraudulent, or were made with intent to defraud creditors, but the complaint shows that Dresen was heavily indebted when he made them; that they were without consideration; and that he had no other property to satisfy the plaintiffs' judgment. The law imputes fraud to such transactions. A man involved in

debt has no right to give away all his property at the expense of his creditors. He must be just before he is generous. If the defendant Dresen made voluntary conveyances of all his property to his wife while in debt, reserving nothing to pay existing creditors, his acts were fraudulent in law. The facts constituting fraud, therefore, are stated with sufficient particularity, so that no court would hesitate, upon their being proven, to set aside the conveyances as fraudulent as to creditors.

It is further said the complaint is defective because it does not contain the allegations required by subdivision 1, rule 28, of the Circuit Court Rules of Practice. The complaint in this case sufficiently conforms to the rule. It shows the amount due on the judgment; and it is very apparent, from the facts stated, that there is no collusion between the parties, and that the plaintiffs are prosecuting the action for the sole purpose of compelling payment and satisfaction of their judgment. The complaint contains all the facts which have been deemed necessary to constitute a cause of action under section 3029, and which entitle the plaintiffs to equitable relief. Ahlhauser v. Doud. 74 Wis. 400, 43 N. W. Rep. 169, and cases cited in the opinion. It follows from these views that the order of the circuit court must be affirmed. G6 Win. 292)

MAGOON V. REBER et al. (Supreme Court of Wisconsin. April 8, 1890.) DURESS-EVIDENCE.

In an action for the cancellation of certain notes, plaintiff testified that, while sitting alone in his omice, defendant entered, presented a cocked pistol at his head, and compelled him to sign the notes to the amount of $15,000, and that defendant then ordered him to call his clerk from an adjoining room to make a part payment thereon. The clerk testified that when he came into the room plaintiff appeared very much excited, trembled somewhat, and said that he had been compelled by defendant to sign certain papers without knowing what they were; which statement defendant then denied. Defendant unqualifiedly contradicted plaintiff's evidence, and testified that the notes had been given, voluntarily, in settlement of a disputed claim. It appeared, however, that defendant, a few days before, had proposed to settle this claim for $6,000; that no release of the claim had ever been executed: that the notes were signed with pencil, while ink could have been obtained from an adjoining room; and that defendant had repeatedly threatened to kill plaintiff if defendant did not get justice in a litigation on the claim. Held, that the evidence clearly established duress, and that a verdict in defendant's favor on a feigned issue out of chancery would be set aside.'

Appeal from circuit court, La Fayette Fayette county.

Barnes & Barnes, for appellant. Brooks & Blanchard, for respondents.

Duress which avoids a contract is either by un lawful restraint or imprisonment, or, if lawful, it must be accompanied by circumstances of unneccessary pain, privation, and danger. Sanford v. Bornborger, (Neb.) 41 N. W. Rep. 1102. In general, as to what constitutes duress, see Davis v. Rice, (Ala) 6 South. Rep. 751; Cooper v. Chamberlain, (Cal.) 21 Pac. Rep. 14, and note; Lomerson v. Johnson, (N. J.) 18 Atl. Rep. 8, and note; Adams v. Bank, (N. Y.) 23 N. E. Rep. 7; Pflaum v. McClint ack, (Pa) 18 Atl. Rep. 734; Dimmitt v. Robbins, (Tex.) 12 S. W. Rep. 4.

COLE, C. J. This is an action in equity, brought by the late Henry S. Magoon, to have canceled and declared void three certain promissory notes purported to have been executed and delivered by him to the defendant Lydia Magoon, and a power of attorney thereto attached, authorizing the attorneys therein named to confess judgment for the amount of these notes. The notes and power of attorney are dated December 29, 1885. One is for $3,000, payable two months from date; one for $5,000, payable three months from date; and the third note was for $7,000, payable six months from date. All the notes are negotiable, and bear interest at 10 per cent. from date. The ground upon which it is sought to have the notes and power of attorney adjudged void and canceled is that those instruments were procured from the plaintiff, or were executed by him, under duress and compulsion exerted over him by the defendant Richard Magoon, alias Richard H. Reber. It is also alleged in the complaint that the notes were absolutely without consideration. The defendants, in their answer, deny all duress and constraint, and allege that the notes and power of attorney were executed by the plaintiff Henry S. freely and voluntarily, in compromise and settlement of certain claims which the defendants Lydia and Richard had against him. On the trial the circuit court submitted to a jury the question whether the plaintiff Henry was constrained to sign the notes and power of attorney through fear that, unless he did so, Richard H. would do him bodily harm; and the jury answered the question in the negative. The circuit court, without expressing an opinion upon the question of duress, allowed the verdict to stand, and gave judgment for the defendant Lydia for the amount due upon the $3,000 note, and costs, and adjudged the other two notes void, and to be canceled and delivered to the plaintiff. The judgment does not mention the power of attorney; but, probably, that falls by the operation of the other parts of the judgment rendered.

It is apparent that the controlling and vital issue in the cause was the question of duress. If the plaintiff was induced to sign the notes and power of attorney through compulsion or constraint of personal violence threatened or impending, or under the influence of such fear of actual violence as overcame his mind and will, so that he did not act freely and voluntarily in executing them, they are void in law, though there might be some consideration

to support them; for the principle is elementary that a contract made by a party under compulsion is void, because the consent is of the essence of a contract, and where there is compulsion there is no consent, for that must be voluntary. 1 Pars. Cont. top p. 392; 1 Story, Cont. § 510; 2 Add. Cont. *1181. In this case the plaintiff claims that actual violence was threatened by Richard H. Reber to induce him to give the notes and power of attorney. If that fact is satisfactorily established by the testimony, as a matter of course the notes are void. The question is one of fact, depending upon the evidence. The verdict of the jury is that the notes were executed by

Henry S. Magoon without any restraint over him being used, or any threats of violence being employed. This verdict, however, is not conclusive and binding upon the judgment of the court upon the question and against the weight of evidence; for this is the well-settled practice upon a feigned issue in chancery, that it is mainly advisory, or to inform the judgment and conscience of the chancellor. So this court and the trial court may disregard the verdict, and determine the question of fact, without reference to the findings of the jury, as it thinks the proofs in the case require. The question whether or not the notes were executed under duress must be mainly determined from the testimony of Henry S. Magoon and the defendant Richard H. No other person was present in the room when the transaction took place, and these parties distinctly and flatly contradict each other upon all material points. But we are inclined to give credit to the statements of Henry S. as more consistent and satisfactory, and more in accord with the probabilities and facts attending the transaction. He details fully the circumstances under which he signed the notes and power of attorney, and, substantially, says that he was in his lawoffice, alone, in the afternoon of the 29th of December, 1885, when Richard came in from the adjoining library room to the desk where he was, and presented a paper for him to sign. It may be observed that the three notes and power of attorney were on the same page of paper. "Richard put the paper in my hand. I asked him what it was, and he said, in a gruff voice: 'It is a paper for you to sign.' As he said that, I heard something like the cocking of a revolver. I turned, and he was in the act of drawing a pistol out from his right-hand overcoat pocket, and in an instant presented it at me. The next declaration was: 'Sign that paper, damn paper, damn quick!' As he said this the pistol was close to my head. I told him I wanted to read it. He answered that it was not necessary for me to read it. I told him I would go and get my specs, which were in the front office, on the counter. He said I didn't need my specs. The next declaration was, I would call O'Brien as a witness; that O'Brien would sign as a witness any paper that I would sign. He answered, with an oath, that I didn't need any witness. I next said to him that I didn't have any ink there. The ink was out in the front bank office. He referred to a pencil, and says: "There is a pencil. You can sign it with that.' I looked, and there was a pencil lying on the desk. With an oath, he demanded that I should sign that paper with that pencil, and with my usual signature. I distinctly saw the pistol. It was a bright pistol. Isaw what I thought was a cylinder behind it. I saw that it was cocked. I saw that his finger was at where the trigger is. With an oath, he demanded that I sign it then. I took the pencil in my hand,-the pistol part of the time, immediately at my head, and part of the time immediately before my face. I signed the paper two or three times, I don't remember which; but he v.45N.w.no.2-8

pointed to the bottom, and said there was another place to sign. I signed that, as well. When signed, he reached, and took the paper in his left hand, holding the revolver in his right. Then, motioning with his pistol, he said, holding the pistol this way (indicating:) 'Now, by God! I want $1,000 and mortgages on them notes.' I told him I didn't have any $1,000 in that office. He demanded $1,000. I repeated that I had no $1,000 there. He said: 'You call O'Brien, and require him to hand me $1,000.' At that time I was sitting at the desk. I arose and started to the door,the door leading into the library room. He said that I should not leave that office until he got the $1,000. Directly afterwards he put the paper in his pocket, opened the door; the pistol still pointing at me. I called O'Brien. A moment intervened. O'Brien did not come. I called again. O'Brien came directly through the bank-office door into about the middle of the library room, and I said to O'Brien: "This man has compelled me, at the point of a pistol, to sign a paper that I don't know what it is, and now demands that I require you to hand him $1,000.' He muttered something; I don't know what it was. My mind was fixed on O'Brien. A moment intervened, and he said: 'He has got $1,000, and you, Johnny, know it; and I want it.'"

Richard gives this testimony a most positive and unqualified contradiction. He denies having any revolver about him when the notes were signed, or using any threats of violence to induce Henry S. to sign them, but says that Henry S. executed them freely, without any constraint. But his account of the matter seems to us improbable, and passing all belief. It appears from the testimony that but a few days before he had made a proposition to settle all claims he and his mother had against Henry S., or the estate of Richard H. Magoon, deceased, for $6,000. He says that Henry at first accepted the proposition, but aferwards refused to stand by it, or "backed out," as he puts it. Henry then told him to prepare a paper containing what he thought was a reasonable proposition as to what he should be paid for the settlement of these claims, and he would examine it, and sign it. This is not the precise language of Richard, but is the meaning and import of what he swore to on these points. That he then, in pursuance of this understanding, drew up these notes and the power of attorney, and took them to Henry at his office, where they were freely executed, if we are to believe Richard's testimony. But it is quite improbable that Henry would have freely and voluntarily given notes, all of which became payable in six months, for $15,000, when but three or four days before he had rejected a proposition to pay $6,000 in settlement of these claims. Besides, the notes were signed with a pencil, when ink was near at hand. Business of such importance is not transacted in this hasty manner. Then, the notes were executed and delivered without Henry's taking any receipt, release, or writing showing that the notes were given in settlement of