Bradley Co. v. Paul

Winslow, J. The plaintiff’s contention is that the mortgages in question were fraudulent in law, because they purported to secure a debt of $7,000 presently owing, whereas in fact but $6,200, at most, was then owing, and the balance was to be advanced in the future. In Barkow v. Sanger, 47 Wis. 500, it was said in the opinion, on page 505, “ The decisions in this court do not hold that a chattel mortgage which is given for a sum greater than is actually due the mortgagee is fraudulent and void in law.” The cases of Butts v. Peacock, 23 Wis. 360, and Blakeslee v. Rossman, 43 Wis. 123, are then reviewed, and shown not to go to that extent. It was suggested in that case that in case it should appear that the discrepancy arose by mistake, or in case it was agreed that the mortgagee should presently advance enough to make up the difference, the inference of fraud [491] ■would or might be repelled. While these suggestions were perhaps obiter in that case, we regard them as entirely reasonable and sound. In the present case, after a perusal of .the testimony, we are impressed with the idea that the transaction before us was free from actual intent to defraud. It seems quite clear that the defendants expected to pay all their creditors in full; that they used all the money advanced to them in. the diligent prosecution of the business; that the gist of the agreement between them and William was that the balance of the money represented by the note, to wit, the sum of about $800, was to be advanced, substantially, at once, or, in other words, presently. It is certainly the fact that all but $100 of it was advanced within sixteen ¡days after the security was given, and the entire sum within •thirty days. These circumstances, we think, may be sufficient to overcome the inference of fraud arising from the fact that the mortgages were given for a greater sum than the debt then owing, and the circuit court having found, in effect, that the inference was overcome, we shall not reverse that finding. By the Court.— Order affirmed.