Mahoney v. Kurth

Wisconsin Supreme Court

Mahoney v. Kurth

157 N.W. 539, 163 Wis. 56, 1916 Wisc. LEXIS 225

DecidedApril 11, 1916

StatusPublished

This text of 157 N.W. 539 (Mahoney v. Kurth) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mahoney v. Kurth, 157 N.W. 539, 163 Wis. 56, 1916 Wisc. LEXIS 225 (Wis. 1916).

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Opinion

Rosenberry, J.

The principal facts in the case are not in serious dispute. Appellant contends that at the time of the making of the conveyance from Herman to his sister, Paulina, Herman was entirely solvent, did not convey all of his property, and that the property described in the mortgage was of ample value to satisfy tae same; that there was no fraudulent intent, and that there was a valuable consideration for the conveyance.

The court found that the conveyance from Herman to Paulina was without consideration and made for the purpose and with the intention of injuring, hindering, delaying, and defrauding the creditors of Herman, particularly the plaintiff in this action.

Sec. 2323, Stats., makes the question of fraudulent intent, in cases such as this, one of fact and not of law. There is nothing to indicate that the trial court did not apply the correct rules of law in arriving at the conclusion which he did upon the facts; therefore the findings must stand as verities unless this court can say upon the evidence that' they are clearly wrong. We have carefully examined the evidence and [58]*58cannot disturb the findings. A detailed discussion of the facts would serve no useful purpose.

Appellant contends that the judgment is unconscionable for the reason that the trial court found that at the time of the foreclosure the property described in the mortgage was of sufficient value to satisfy the mortgage together with all taxes chargeable against the property. There is no evidence in this case of any overreaching by the plaintiff, and nothing to show that the defendants or either of them were in any way misled by the plaintiff. The obligation to pay and discharge the mortgage was that of the defendant Herman, and if the property described therein was of sufficient value to discharge the mortgage it was his duty to see that it was so applied, and in the absence of any evidence of overreaching or fraud on the part of plaintiff we think the claim that the judgment was unconscionable is without merit.

By the Court. — Judgment affirmed.

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Rosenberry, J.

The principal facts in the case are not in serious dispute. Appellant contends that at the time of the making of the conveyance from Herman to his sister, Paulina, Herman was entirely solvent, did not convey all of his property, and that the property described in the mortgage was of ample value to satisfy tae same; that there was no fraudulent intent, and that there was a valuable consideration for the conveyance.

The court found that the conveyance from Herman to Paulina was without consideration and made for the purpose and with the intention of injuring, hindering, delaying, and defrauding the creditors of Herman, particularly the plaintiff in this action.

Sec. 2323, Stats., makes the question of fraudulent intent, in cases such as this, one of fact and not of law. There is nothing to indicate that the trial court did not apply the correct rules of law in arriving at the conclusion which he did upon the facts; therefore the findings must stand as verities unless this court can say upon the evidence that' they are clearly wrong. We have carefully examined the evidence and [58]*58cannot disturb the findings. A detailed discussion of the facts would serve no useful purpose.

Appellant contends that the judgment is unconscionable for the reason that the trial court found that at the time of the foreclosure the property described in the mortgage was of sufficient value to satisfy the mortgage together with all taxes chargeable against the property. There is no evidence in this case of any overreaching by the plaintiff, and nothing to show that the defendants or either of them were in any way misled by the plaintiff. The obligation to pay and discharge the mortgage was that of the defendant Herman, and if the property described therein was of sufficient value to discharge the mortgage it was his duty to see that it was so applied, and in the absence of any evidence of overreaching or fraud on the part of plaintiff we think the claim that the judgment was unconscionable is without merit.

By the Court. — Judgment affirmed.

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Bluebook (online)

157 N.W. 539, 163 Wis. 56, 1916 Wisc. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahoney-v-kurth-wis-1916.