56 Wis. 652 | Wis. | 1883
The theory of the complaint seems to be that Mr. Boude and Mr. Felker owned the mill property as tenants in common, and that Mr. Felker, in making repairs on the mill, acted on behalf of Mr. Boude as well as himself. Rut the evidence conclusively establishes the fact that no such relation existed between them; consequently no inferences can be made founded on the existence of that relation. The referee found that at the time the work was done and materials furnished for which a mechanic’s lien is claimed, that Mr. Boude held the legal title to the mill property as security for money loaned Asaph Howard; also for money paid to discharge certain liens upon the pivqperty, and for money paid on obligations incurred by Mr. Boude for and on behalf of Mr. Felker. In other words, that, as between Mr. Boiide and Mr. Felker, the true relation was that of mortgagee and mortgagor. There can be no doubt but this finding is sustained by almost all the evidence bearing on the question.
It is true, it appears Mr. Bouok had taken two sheriff’s deeds upon the property, nevertheless his interest therein was that of a mortgagee merely. Mr. Felker could acquire that interest at any time upon paying Mr. Bouok the debt for which the property stood as security. Whether in fact Mr. Felker was the real owner, subject to the liens, is an immaterial question. It is a fair inference from his answer that he claims to be such owner. A personal judgment was given against him for the amount found due the plaintiffs’ intestate for work done upon and materials furnished for the mill at Mr. Felker’s request, and the judgment is made a
The title of record appeared to bo in Mr. Bouoh. Such being the case, the counsel for the plaintiffs insists that George Challoner had the right to treat him as the true owner, and to assume that the repairs were upon his property and for his benefit. It is not pretended that Mr. Bouoh, by word or act, attempted to mislead any one as to his interest in the property. It is true, the written agreement between him and Mr. Eelker of August 24, 1 §71, was not recorded; while the sheriff’s deed, of May 21, 1811, was. One of the plaintiffs in effect testified that when the work of repairing the mill was commenced, the general understanding in Omro was that Mr. Bouoh was interested in it, and that work was furnished for a time on that inference. But when more work . was required than was supposed to be necessary at the start,
In any view which we have been able to take of the case we think the judgment of the circuit court is correct and must be affirmed. •
By ike Court.— Judgment affirmed.