Krause v. Krause

125 Wis. 337 | Wis. | 1905

Siebeckeb, J.

The defendants Louis and Bose Krause, as appellants, urge no exception to the findings of fact of' the trial court, but aver that the court erred in refusing to award them a recovery of the sum of $425, the amount they paid to Fred Krause over and above the value of the personal property received and now held by them under their agreement with Fred Krause, who had transferred to them all the right and interest which he had acquired under the agreement for the support of plaintiffs and their conveyance to him of their farm and personal property. The court held that the agreement on the part of the son and his wife to render to the parents the personal care and attention contemplated by it, and to provide them with the stipulated means . of support, were substantially broken through the fault of appellants, and that by such breach a reversion of title had taken place which called for a decree setting aside the conveyances of the real' estate. Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118; Wanner v. Wanner, 115 Wis. 196, 91 N. W. 671; Burgson v. Jacobson, 124 Wis. 295, 102 N. W. 563. The question involved in the giving of a mortgage by appellants on these and other lands to secure the payment of the $900 borrowed by them was not before the court and must therefore remain undetermined. It is urged that the court failed to consider or erred as to appellants’ right to reimbursement for the payment of the $425 over and above the value of the personal property at the time they undertook in Fred Krause’s place to carry out the contract of support. We do not so interpret the decision. Under the findings and judgment the right to the personal property originally conveyed by respondents to Fred Krause and by him assigned to appellants was as completely and effectively covered as the right to the real estate. That the court so considered it is apparent from the specific finding of fact to the effect that appellants included the personalty in their wrongful transfer of the land to Milce Frederick and their daughter, Eme-lie, and from the decree restoring respondents to their rights in the property, by which the real estate only is awarded to them, and whereby appellants and their grantees are left in possession and ownership of the personal properties. The judgment entered on the findings determines the rights of the parties to all of the disputed matters litigated and embraced in the issues and covered by the findings of the court. The right to the personal property being thus involved in the action, the decree covers it and awards it to appellants and their vendees. The fact that $150 was paid to respondents’ daughter under the terms of thm agreement for support in no way affects the judgment and cannot be made the basis of an equitable claim against them, in view of the-fact that, as a re-suit of the transaction, tbeir personal property is awarded to the appellants, and the further fact that appellants and their grantors under the agreement have had the use and income of the real estate for the period of five years. This use of the property by appellants to the time of restitution of the real estate, and respondents’ loss of all of their personal property without fault on their part, are important considerations, and furnish substantial grounds in support of the judgment entered by the trial court in adjusting the equities of the controversy. We find nothing in the record to warrant a modification of the judgment for want of equity.

By the Court. — Judgment affirmed.