63 Wis. 315 | Wis. | 1885
This is a case in equity; and if improper evidence was admitted on the trial that would afford no ground for a reversal of the judgment, if otherwise correct. In such a case the improper evidence is disregarded by this court, so the error in admitting it becomes immaterial.
Coming to the case on the merits, the first question to be considered is as to the nature of the conveyance of October 27, 1881, from the plaintiff and her husband to the defendant Reeve. Was that deed understood by the parties to it to be an absolute conveyance of the premises for the sum of $3,000, as found by the court below, or was it in the nature of a mortgage ? The deed is absolute in form. But it is conceded that it was competent to show by parol testimony that it was given to secure a debt, and, in legal effect, was a mortgage, if such were the fact.
The evidence upon the question is somewhat conflicting, but the decided preponderance of proof supports the finding of the trial court. Even the complaint itself tends to sustain the conclusion that there was an absolute sale of the property, for the principal relief asked is that this conveyance be adjudged a mortgage, and that the plaintiff have
Another question is, Was the husband of the plaintiff, who negotiated for her and as her agent transacted the business, authorized to make the sale upon the terms agreed upon? She does not really deny his authority to make a sale of the property, but says she never authorized him to make such a one as he did make. In her testimony she says, in effect, her husband told her he was unable to pay up the mortgage, and he thought it was best to sell the place and get what they could out of it; that Dr. Reeve would take the .place at $3,000, and pay them the balance, aside from the
The court found that the defendant Beeve has paid the consideration mentioned in the deed which he agreed to pay, except §200, which sum, with interest from October 21, 1881, is still due from him to the plaintiff. In arriving at this result it is claimed the court deducted from the purchase money certain debts which should not have been paid out of it, and that more was paid on one of the mortgages than was due upon it.
First, as to the Morse mortgage, which was an incum-brance on the property and had to be discharged. In respect to that mortgage we do not think the proof shows any overpayment. True, there is some conflict of testimony on the point, and an ingenious attempt is made by the
A preliminary injunction was obtained in the suit, enjoining the defendant Reeve from interfering with plaintiff’s possession of the premises, and to restrain the defendant Golden from enforcing a writ of restitution in his ‘■hands, as sheriff. The court held that this injunction was ¡improperly granted, and ordered a reference to assess the damages which Reeve had sustained by reason of it. A question is made as to the regularity of this practice, but it seems to be authorized by sec. 2718, R. S. That section, in effect, provides, where the court finally decides that the party obtaining the injunction was not entitled to it, that the damages which the other party has sustained by reason of it may be ascertained by a, reference, or other
By the Court.— The judgment of the circuit court is affirmed.