#### Concordia Fire Insurance Company of Milwaukee, Respondent, vs. Pittelkow and wife, imp., Appellants.

*May 4*

*May 21, 1901.*

*Mortgages: Foreclosure: Appeal: Presumptions.*

1. Where in an action to foreclose a mortgage the trial court finds categorically against the defendants on the defense of duress, on appeal the finding must be taken as true when it is not antagonized by any clear preponderance of the evidence.

2. Where in an action to foreclose a mortgage the bill of exceptions does not contain the mortgage, on appeal the court will assume that the mortgage was sufficient to support a finding that a wife intended to, and did, charge her separate estate in the mortgaged premises.

Appeal from a judgment of the circuit court for Milwaukee county: Eugene S. Elliott, Circuit J udge.

*Affirmed.*

In an action to foreclose two mortgages held by the plaintiff, one of which was upon two lots in Milwaukee occupied by the defendants as their homestead, and title held under a conveyance to them “jointly as husband and wife,” the defendants set up as defenses that the signature of *Mary Pittelkow*was obtained to said mortgage by fraud and duress, and that it was executed by her merely to validate it as a mortgage of *Charles Pittelkow’s*interest, and not with intent to charge her separate .interest therein. After trial the court found against the defendants on these issues, finding expressly that defendant *Mary*executed the note and mortgage as her free and voluntary act, that the mortgagee took no advantage of her, that no duress or undue influence was used or exercised to induce her to execute the note, or mortgage, and that by the execution and delivery of the mortgage said defendant *Mary*intended to, and did, charge all of her interest and separate estate in the mortgaged premises, whereupon‘judgment of foreclosure and sale, without direction for deficiency judgment against either of the *617defendants, was ordered and entered, from, which this appeal is brought by both *Charles*and *Mary Pittelkow.*

For the appellants there was a brief by Twrner, *Pease & Turner,*and oral argument by TF. *J. Turner,*

For the respondent there was a brief by *Sheridam ds Wol-*laeger, and oral argument by *James A. Sheridan.*

Dodge, J.

Upon the defense of duress, the court below has found categorically against the defendants. A careful examination of the evidence satisfies us that such finding is supported thereby,— certainly is not antagonized by any clear preponderance. That being the case, the finding must be taken as true; and discussion in detail of the evidence, which is somewhat voluminous, can serve no good purpose.

A further contention by the appellants is to the effect that the mere signature of the mortgage, as wife, by *Mary Pit*telkow, carries with it no implication of intent on her part-ió charge her separate interest in the land. This subject is not before us; for, if we should concede appellants’ contention, it still cannot be denied that the mortgage might be in such form as clearly to evince and effectuate an intention to so charge her interest. The mortgage was introduced in evidence, and thereupon the court found that she intended to, and did, charge her separate interest in the property. Appellants have not seen fit to bring that mortgage up in' the bill of exceptions, and we therefore must assume that it was sufficient to support the finding.

The findings being thus supported, the judgment as entered properly resulted therefrom.

*By the*Court.— Judgment affirmed:'