115 Wis. 389 | Wis. | 1902
If it be conceded that Mrs. Frey had legal authority to execute a mortgage to her father to secure his claim against her husband, still, if such mortgage was not given to secure a bona fide indebtedness, it was fraudulent as
Erom this review of the Thielke account, it appears that the only actual existing indebtedness of Frey to Thielke at the time tlie mortgage was given was for the horse and cattle, amounting to $185. These items were tacitly denied by Erey when he detailed the items of his indebtedness, which did not include Thielke''s said claim, and said these were all of his debts. We do not say that Thielke might not, under proper circumstances, have taken security for his contingent liability on the notes mentioned, but, inasmuch as the mortgage largely exceeds any real or contingent claim he had against Erey, it became presumptively fraudulent. Thielke knew that Erey was under no obligation to him for any such amount as the mortgage secured. He knew Frey was deeply in debt, and had but little property. In speaking of the situation, Mr. Thielke said: “I made a good many payments, and had a gcod many expenses, so I thought to secure myself. I took a mortgage of $1,500, and took it very easy. I might have taken one for $2,500.” In his answer he set up that the consideration for said mortgage was moneys advanced as purchase price of the land covered by the mortgage, and for care of Erey’s wife and children. He utterly failed in his proof as to moneys put into the land. His entire attitude is inconsistent with good faith. It cannot be easily reconciled on any
By the Court. — The judgment is reversed, and the cause remanded with directions tó enter judgment as indicated in the opinion.