171 Wis. 1 | Wis. | 1920
That it was competent for the court, upon sufficient evidence, to adjudge the warranty deeds to be in fact mortgages and to strike therefrom the assumption clause, is settled by the case of Broadbent v. Hutter, 163 Wis. 380, 157 N. W. 1095. The only question is whether the findings of the court'in this respect are supported by clear and satisfactory evidence.
It appears without dispute that Boehme and O’Connor had been friends for twenty years; that formerly O’Connor had managed the Pabst Hotel in the city of Milwaukee and
If they were mortgages, then the assumption clause had no place therein ancj there was no consideration upon which the agreement can be supported. Broadbent. v. Hutter, supra. There being no consideration in support of the agreement to assume the mortgage, it matters not whether the clause was inserted through fraud, as the court found, or by-mistake of the scrivener, or the mutual mistake of the parties, or whether Boehme knew, or in the exercise of proper" care should have known, that the deed carried with it an agreement to pay the $8,000 mortgage. The agreement, being void for want of consideration, cannot be enforced, and it was properly stricken out. The findings of the court of which appellant complains are. well supported by .clear and satisfactory evidence, and that portion of the judgment granting affirmative relief to Boehme should be affirmed.
By the. Court. — Judgment affirmed.