117 Wis. 328 | Wis. | 1903
Tbe main question to be decided is, Did tbe court err in concluding from tbe evidence tbat tbe relations of mortgagor and mortgagee were created between plaintiff and the loan company? It is suggested as a conclusive circumstance in favor of appellant tbat after tbe land contract was assigned to tbe company and it gave back tbe agreement to respondent, tbe relations of debtor and creditor did not exist between them, an element ordinarily vital to tbe relations of mortgagor and mortgagee. True, a mortgage, not being an interest in land, but only a lien on land, a mere incident of something it stands for, as security, there must be tbe principal thing or else there cannot be the incident. If there were tbe latter in this case it must have been an indebtedness of plaintiff to' the loan company which tbe assignment was given to secure. In determining what tbe real relations were between tbe parties, after tbe exchange of tbe assignment of tbe contract for tbe receipt and agreement, we may look to tbe situation of tbe parties at tbat time, all tbe circumstances of tbe transaction, and their conduct in reference thereto subsequently, and all tbe evidence bearing on tbe question.
Three elementary principles must be kept clearly in mind in. dealing with cases of this sort: (a) A transfer of property as security, regardless of tbe form thereof, is a mortgage, and, as regards rights or remedies, must be dealt with as such. Starks v. Redfield, 52 Wis. 349, 9 N. W. 168; Brayton v. Jones, 5 Wis. 117; Cumps v. Kiyo, 104 Wis. 656, 80 N. W. 937. (b) If from all the circumstances of the case it appears
The most familiar cases where all of the above principles were applied are those where one person, at the request of another whose land was sold upon execution or foreclosure, bought the same at the sale and took title thereto, agreeing verbally to convey the same to such other upon his repaying the money expended in the transaction, with interest. Sweet v. Mitchell, 15 Wis. 641; Spencer v. Fredendall, 15 Wis. 666; Wilcox v. Bates, 26 Wis. 465; Hoile v. Bailey, 58 Wis.
Applying the foregoing to the evidence in this case, it sufficiently indicates the creation of the relation found by the trial court to preclude us from holding that the decision in that regard is against the clear preponderance of the evidence. We are inclined to agree with the suggestion of respondent’s counsel that the instrument given to respondent by the loan company shows upon its face that the title to the property was taken as security only. It shows all the circumstances usually characterizing the cases where one person took title to the property of another at a judicial sale to protect such other. The loan company acknowledged receipt of the land contract, plainly indicating that the parties did not intend that it should, by the assignment thereof, become the absolute
When we refer to the oral testimony in aid of the writings, a very strong case is made in favor of respondent. It appears that, as a part of the transaction which included the making of the papers, the loan company agreed to compromise its claim of $148 against respondent for $75, on condition of payment of the latter sum and the sum necessary to pay the balance due upon the contract, being secured by an assignment to it of such contract, and-that the papers were made in execution of such agreement. That indicates that, while the par
Appellants’ counsel contend that there is no support for the finding that Allen, Erickson, and Anderson were severally purchasers with notice of plaintiff’s rights. That is based solely on the theory that they cannot be rightly charged with knowledge of more than what appeared upon the face of the paper given to respondent denominated by him a contract for the property. As we have held that such paper was sufficient of itself to indicate that the loan company obtained only a mortgage interest in the property, such contention is immaterial. The evidence shows that the parties all knew respondent claimed that his paper gave him the interest of a vendee under a land contract in all the property. Allen’s evidence indicates that he knew just what respondent claimed. Respondent testified that he told Erickson and Anderson that his land contract covered the land; that he had several conversations with them about the matter; that he told them the title was in Allen and that there was money to be paid to him; that he negotiated with them, as owner of the land, to sell portions thereof. Looking at the evidence in the whole, it seems quite
Complaint is made because, while Osse is not a party to tbe litigation, appellant Allen is required by tbe judgment to transfer tbe land contract with him, and the lien affected thereby, to respondent, so tbat, while Allen is not released from carrying out bis agreement with Osse, be is by such judgment deprived of power to do so. It is claimed such relief should not be granted, since Osse was not made a party to tbe litigation. We are unable to see any ground for complaint in tbat on Allen’s part. Ossets rights axe not affected by tbe suit, and could not have been, properly, in any event, if be was an innocent party. lie stands as such, and bis equitable rights are all protected. Upon paying out bis contract to tbe person entitled to tbe money be will be entitled to a conveyance from whomsoever shall bold tbe legal title to tbe land .in trust for him. Tbe danger tbat be may make a claim against Allen which tbe latter may not be able to discharge according to tbe terms of tbe contract is hardly one, under the circumstances, which a court of equity is bound to provide against. Allen must be held to have bad knowledge, wben be made tbe contract with Osse, tbat be might not be able to perform as be agreed; tbat be might be placed in tbe exact situation in which be now finds himself by reason of this litigation. Osse has all the protection tbe couyt could give him, equitably, if he were a party to tbe cause. He is accorded tbe
By the Court. — The judgment is affirmed.