167 Wis. 12 | Wis. | 1918
Defendants claim that the judgment should be reversed (1) because there is no proof of an agreement by the parents, Frederick and Augusta Glander, to convey to the son Ewald, as found by the court; (2) that the court erred in permitting Anna, the wife of the deceased Ewald, to testify to the transaction between the parents, Fx*ederick and Augusta, and Ewald; (3) that the transaction between the widow, Anna, and Leo being embodied in the notes and mortgage, their agreement cannot be varied so as to establish a trust in favor of the plaintiffs; (4) that there is no evidence to show that the defendant Albert has received or converted any of the proceeds of the mortgage .given by Anna to Leo to secure the payment of $9,850; (5) that the finding that Ewald fully performed the contract <of settlement made between him and his parents is contrary to the weight of the evidence.
No doubt the most serious question in this case is that raised by the first contention of the defendants, that there is not sufficient proof of an agreement between Ewald and his parents. We have carefully examined this question and are agreed that upon the case as a whole there is ample support for the finding made by the trial court. If the testimony of Anna and her mother stood alone, a much more serious question would be presented. The conduct of the parents, of Ewald, of Leo, and of Anna can be explained satisfactorily •only upon the theory that there was such a valid contract known to all the parties. The fact that Leo exacted the payment of $750, the amount of the judgment in favor of the Erst wife, in cash, and on account of that judgment, is of itself a very significant circumstance so far as Leo is con
As to tbe contention that Anna, wife of tbe deceased Ewald, was incompetent as a witness under tbe provisions of sec. 4069, Stats., tbe plaintiffs in tbis action did not claim from, through, or under Anna; she was not a party, either necessary or proper, to tbe action. Ewald was never seised of tbe premises; she was therefore never entitled to any dower interest therein, and we see not tbe slightest objection to her competency as a witness.
It is claimed that tbe evidence offered to prove that Leo held notes and a mortgage for $9,850 as trustee for tbe benefit of tbe children was incompetent in that it tended to vary or contradict tbe terms of a written instrument, to wit, the notes and mortgage. Tbe testimony offered in no way contradicts or varies tbe terms of tbe notes and mortgage. From an early day it has been held that tbe true consideration for a conveyance of real estate may always be inquired into and established by parol, although tbe conveyance be absolute upon its face; as, for instance, a deed absolute in form may be shown to be in fact a mortgage. Within tbis principle we think tbe evidence was properly admitted.
It is claimed there is no evidence to sustain tbe finding and conclusion of tbe trial court that tbe defendant Albert was guilty of fraud and therefore liable to tbe plaintiffs in-tbis action. Tbis is an action begun against tbe defendants to follow a particular fund and impress it with a trust in favor of tbe plaintiffs, and tbe sixth conclusion of law is “That tbe said Leo Glander and Albert Glander are hereby charged as trustees of said sum so received.” Tbe judgment is that tbe sum of $10,757.20 só received in payment
There is no evidence whatever in the record to show that Albert ever received any part of this fund; on the contrary, the evidence establishes clearly that he did not. It is difficult to see how there can be joint recovery against two defendants for the same fund, — against one on the ground that he holds the fund as trustee, and the only other possible liability against the other defendant being that he was guilty of some wrongdoing. The fund having been received entirely by Leo, Albert having received no part thereof, it must be held that as to Albert no liability as a trustee of the fund in question has been established.
It is also contended on behalf of the defendants that the evidence fails to support the finding that Ewald fully performed the contract of support, if it be admitted that there was one. We have examined the evidence in respect to this finding and we think it ample to support the finding made.
Many errors are assigned as to findings which relate to merely evidentiary matters. We have examined all of the errors assigned and find no reversible error except as stated.
By the Oourt.- — As to the defendant Leo the judgment of the circuit court is affirmed. As to the defendant Albert the judgment of the circuit court is reversed, with directions to dismiss the complaint. One bill of costs will be allowed in this court in favor of the respondents and against the appellant Leo.
