Wisconsin Reports Volume 46; Cases Determined in the Supreme Court of Wisconsin (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1879 Excerpt: ...were entitled to any equitable relief, they were entitled to have all the equities between them and defendants growing out of the transactions in question, fully and finally settled in this action. The jurisdiction of a court of equity having once attached, it will be made effectual for all purposes of complete relief; and when equity and justice demand it, courts of equity will cancel conveyances and agreements, and, so far as may be, restore parties to their former condition. Peck v. School District, 21 Wis., 523; Whelan v. Whelan, 3 Cow., 537; Fish v. Folley, 6 Hill, 54; Shaffer v. Lee, 8 Barb., 412; Schell v. Plumb, 55 N. Y., 592; Sears v. Slwfer, 6 id., 268; Devereaux v. Cooper, 11 Vt., 103; Town, of Royalton v. R. & W. T. Co., 14 id., 324; Leach v. Leach, 4 Porter (Ind.), 628. Lyon, J. We think the learned circuit judge erred in holding that the mortgage in suit was given to secure the payment of $2,200, and in giving judgment accordingly. It is apparent that no such covenant was in the minds of the parties, but that the mortgage was given to secure the performance, by the defendant John Bresnahan, of the covenants contained in the conditions of his bond, and those only. True, the condition of the mortgage is to pay $2,200; but it is to pay the same according to the condition of the bond, and we find in the bond no covenant to pay $2,200, or any other specific aggregate sum; neither is there any stipulation that the $2,200 named in the penal portion of the bond was intended to be liquidated damages. Under well settled rules, the sum so named must be regarded as a penalty. Berrinkott v. Traphagen, 39 Wis., 219; Yenner v. Hammond, 36 id., 27T. Bresnahan and wife vs. Bresnahan and wife. Although the testimony is not as clear and satisfactory as might...