86 Wis. 655 | Wis. | 1894
The ages of the plaintiffs, respectively, the fact that neither could read, write, or speak the English language, and the value of the real estate and personal property, as alleged in the complaint, were all proved without objection. It was also proved, without objection, that no note was given with the mortgage; that the agreement between the father and son was not reduced to writing at all, except the deed and mortgage; that the son gave his father nothing further for the deed “than the mortgage and his verbal agreement to support ” the plaintiffs; that, since the son had left, the plaintiffs had not had any one on the farm to help them; that neither of the plaintiffs was able to do any work upon the farm; and that'they had no other property. The1 court thereupon excluded all evidence as to whether there was any part of the agreement not reduced to writing, or any other consideration for the deed except an oral agreement to support, or as to what that agreement was, or the actual consideration for the deed, or whether the father was to receive anything
The deed and mortgage bade, having been executed and delivered at the same time, must be taken together and construed as one instrument in law for the purpose of determining the character of. the transaction and the intention of the parties. Gillmann v. Henry, 53 Wis. 468; Herbst v. Lowe, 65 Wis. 320; Joy v. St. Louis, 138 U. S. 38. Being one paper in law, they must either stand or fall together in law. Morgan v. Loomis, 78 Wis. 598. By the two instruments, taken together, the plaintiffs in effect conveyed their homestead, of the value of $3,000, to their son, his heirs and assigns forever, by deed reciting a consideration of $1,500, subject to the reservation of the possession of the land for the purpose of living thereon, upon condition that $1,000 of such consideration should be considered paid on their death, and that the other $500, without interest, should be paid to their heirs at law, according to the conditions of a certain note mentioned but never executed. As the heirs at law of the plaintiffs can only be ascertained upon their death, it is obvious that the $500 is not to be paid until after their death. It appears, and is in effect conceded, that no consideration whatever was paid or secured except as mentioned. As indicated, the mortgage states when the $1,000 is to be “ considered paid,” but con
•The rule is well established that when- only a part of an entire agreement is reduced to writing the residue may be proved by extrinsic evidence. Ballston Spa Bank v. Marine Bank, 16 Wis. 136; Jilson v. Gilbert, 26 Wis. 645; Nilson v. Morse, 52 Wis. 240; Becker v. Knudson, ante, p. 14. So. where the time &nd manner of paying the consideration for a conveyance is not expressed, or is only partially expressed in the writings, it is competent to prove the same by parol. Frey v. Vanderhoof, 15 Wis. 397; Hannan v. Oxley, 23 Wis. 519; Horner v. C., M. & St P. R. Co. 38 Wis. 165; De Forest v. Holum, 38 Wis. 516; Kickland v. Menasha W. W. Co. 68 Wis. 34; Green v. Batson, 71 Wis. 54; Ludeke v. Sutherland, 87 Ill. 481. Some of these cases go to the extent of holding that parol evidence is admissible to prove an additional consideration to the one recited in the conveyance, though not' inconsistent with it. So it has been repeatedly held that a conveyance, though absolute in form, may nevertheless be shown by parol evidence to be nothing more than a
By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.