Broadbent v. Hutter

163 Wis. 380 | Wis. | 1916

KeRWIN, J.

It is without dispute that the deed to defendant was executed and delivered by E. H. Hutter for the purpose of securing defendant on his indorsement of a note of E. H. Hutter for $200. It is also established that defendant did not require security, never asked that the deed be given, and in fact knew nothing of the terms of it when it was delivered to him. The deed was not delivered to defendant when he indorsed the note for E. H. Hutter, nor mentioned, but sometime afterwards E. IT. Hutter caused the deed to be executed and recorded and delivered it to the defendant, 'William H. Hutter, saying that he desired to secure him on the indorsement. The deed when delivered to defendant was inclosed in an envelope and put away by bim and never read or examined until tbe papers in tbe foreclosure suit were served upon bim.

Tbe findings of fact are well supported by tbe evidence and support tbe judgment.

1. It is first insisted by counsel for appellant that defendant promised to pay tbe indebtedness covered by the two mortgages on tbe property and is absolutely liable on such promise. But it is established without dispute that tbe deed to defendant was given as security and that tbe provision assuming tbe mortgage indebtedness was inserted in tbe deed to defendant by accident and mistake.

2. It is further contended by appellant that tbe defendant was bound to know tbe contents of tbe deed delivered to bim, .and that be could not lay it aside for two years without examination and then ask to be relieved from tbe terms thereof, and relies upon tbe doctrine of Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246, and Van Beck v. Milbrath, 118 Wis. 42, 94 N. W. 657.

But tbe case here is clearly distinguishable from tbe cases relied upon by appellant. Here there was nothing whatever to put tbe respondent on inquiry. Tbe deed was made and recorded by bis brother, E. H. Hutter, and delivered to defendant as security without any intention on tbe part of tbe grantor or defendant that it was given for any other purpose. In tbe Bostwiclc and Van Beclc cases tbe controversy was between tbe parties to tbe contract. Here there is no controversy between tbe parties. It is admitted by both parties to the deed that tbe assumption clause has no place in it.

Tbe deed having been given merely as security, there was no consideration for tbe alleged assumption of liability contained therein, and evidence was competent to show that tbe deed was given merely as security. Smith v. Pfluger, 126 Wis. 253, 105 N. W. 476; Corbett v. Joannes, 125 Wis. 370, 388, 104 N. W. 69.

It was found by tbe court below upon sufficient evidence . that tbe plaintiff was not damaged by tbe conduct of tbe defendant in receiving and bolding tbe deed or in not discovering tbe assumption clause until suit was commenced.

Tbe motion to amend tbe answer at tbe close of tbe evidence by setting up a claim for reformation of tbe deed was proper and tbe evidence ample to support tbe findings to tbe effect that defendant was entitled to reformation. We think tbe case was correctly decided below, therefore tbe judgment must be affirmed.

By the Court. — Judgment affirmed.