Beckman v. Beckman, 86 Wis. 655

86 Wis. 655 | Wis. | 1894

Cassoday, J.

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 besides the mortgage, or whether the son was to remain upon the farm and support' his father and mother during their natural lives and give them a decent burial at their death, or whether the plaintiffs supposed the papers mentioned fully expressed the agreement and consideration for the deed, or that in 1886 'the son neglected and refused to furnish any support to the plaintiffs or to observe or carry out such oral agreement. Such parol testimony was excluded on the ground that the whole contract had been reduced to writing, and that such oral evidence tended to contradict, modify, or enlarge the terms of the deed and mortgage, and hence was inadmissible.

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 contains no agreement to pay the same, and is entirely silent as to the time and manner of making such payment, and is unaccompanied by any written agreement to pay in money, property, support, care, or in any way. Thus it appears that the son obtained $500 worth of personal property, and the-conveyance of the homestead of the value of $3,000, without paying any consideration therefor, or agreeing in writing to pay anything therefor, except the $500 as mentioned ; and yet it is apparent from the writings executed that the son did make some kind of an agreement, not reduced to writing, respecting the balance of the consideration. In fact it is impliedly admitted in the answer by alleging in effect that the defendants had been ready and willing to perform “ all the written agreements and verbal understandings . . . relative to said land and personal property, except so far as plaintiffs, by their own conduct, prevented.”

•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 mortgage or security. We must bold that it was competent to prove by parol the true consideration for the conveyance, and the time and manner in which the same was to be paid. The action seems to be in line with numerous cases in this court, where, as here, the written instruments, taken together, have been held to be a conveyance upon condition resting wholly or partially in parol, and where such conveyance has been set aside for a breach of such condition, and the court has done equity between the parties, especially in favor of aged parents. Bogie v. Bogie, 41 Wis. 209; Bresnahan v. Bresnahan, 46 Wis. 385; Blake v. Blake, 56 Wis. 392; Delong v. Delong, 56 Wis. 514; Divan v. Loomis, 68 Wis. 150; Stoel v. Flanders, 68 Wis. 256; Hartstein v. Hartstein, 74 Wis. 1; Dickson v. Field, 77 Wis. 439; Morgan v. Loomis, 78 Wis. 600.

By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.