74 Wis. 490 | Wis. | 1889
This action is to foreclose a mortgage upon the S. W. J of the S. W. £ of section 16, township 17,-range 15 E., in Winnebago county, Wis., executed by the defendant JR. W. Frees to one Angel B. Frees, on the 17th day of June, 1869, to secure the payment of the sum of $400, $200 of which was to be paid December 1,1872, and $200, December 1, 1873, without interest, of which the plaintiff has become the owner. The following are substantially the facts:
A. B. Frees, the father, entered into possession of said premises in 1852. Alpheus O. Frees, his son, became the owner of the same by patent from the state in May, 1852. A. B. Frees died in 1868, and by his will devised the premises to his widow for life, and on her death to his two sons, JR. W. Frees and Angel B. Frees. R. W. Frees went into possession under his mother, and an agreement with Angel B. that he would support her during life, executed at the same time of the mortgage in suit. At the same date, Angel B. Frees quitclaimed his interest in the premises to JR. W. Frees, and surrendered to him his interest in certain personal property, as the consideration for the payment of said $400 and the mortgage in suit to secure the same. In said agreement it was further provided that said mortgage moneys should be paid only on condition that the said Angel B. Frees secure “ a good and perfect title to the said land ” on or before the 1st day of December, 1872. To carry out this agreement, Angel B. Frees procured the said Alpheus O. Frees to convey said land to the’said A. W. Frees on the 27th day of April, 1871, and the deed was recorded June 5, 1871. Angel B. Frees caused said mortgage to be recorded May 8, 1871; and in February, 1887, the said
So far, there is no trouble with the case. The title was perfected in time, and the mortgage took effect. But, in 1854, A. B. Frees, the father, and his wife, mortgaged the premises to a railroad company, and that mortgage was foreclosed in 1811, and the premises sold to one I. R. Fick-iin, and deeded to him in January, 1872. The material defense is that the title has not been made good and perfect by removing this apparent cloud upon it. Another defense is that the premises at the time of the execution of the mortgage in suit were, and still are, the homestead of the defendant JR. W. Frees, he being at the time the husband of the defendant Clara J. Frees, who together lived upon and occupied the same as their homestead.
The circuit court found that the said Angel B. Frees did not and has not secured to the said JR. W. Frees a good and perfect title to said land, and that he is not, therefore, in default on said mortgage, and there is nothing due or unpaid thereon, and that said premises were and are the homestead of the said R. W. and Clara J. Frees, and dismissed the complaint.
We think the circuit court erred in both of these findings.
First. The quitclaim deed, the agreement, and the mortgage were one transaction, and are all equally affected by the condition, and became inoperative and of no effect on failure to perform it. The interest of Angel B. Frees in the personal property of the estate of his father also passed to R. W. Frees, by the agreement, as part of the consideration of the mortgage.’ (1) We do not think it was contemplated or within the intention of the parties by the condition, that any pretended cloud or incumbrance by reason of the
The mortgagor, B. W. Frees, is estopped by the above facts, and by his conduct otherwise, from claiming that his title is not good and perfect. He has retained all the fruits of the transaction, and has offered to return none of them.
The condition was fully performed. The railroad mortgage was not, and the foreclosure and sale thereunder are not, a cloud even upon the title. From any thing appearing in this case, the father, A. B. Frees, had no title whatever when he gave the mortgage. TIis possession, even, must be referred to the legal title of A. 0. Frees, the patentee from
Second. It seems to us that there was no evidence that the land was the homestead of R. W. Frees and his wife, Clara. (1) They did not occupy the land, except as under the widow of A. B. Frees, deceased, who remained in possession after the husband’s death, and who had a life-estate in it b3' his will. They did not “own and occupy’’.the premises in the sense of the homestead law. By the agreement, she was to continue to live on the premises during her life, and she did so occupy it until she died in 1873. (2) They appear to have had another homestead in the same section. (3) The mortgage in suit was to secure the payment of the purchase money. The mortgage recites that “ this mortgage is given to secure the purchase money of the above premises.” It was at least and strictly given for the purchase of an undivided half of the premises at the time; and the agreement contemplated that Angel B. Frees should procure the fee-simple title to the whole, as the consideration of the mortgage. The mortgage correctly called it the “ purchase money.” (4) A homestead cannot be jointly held with another. West v. Ward, 26 Wis. 579.
The question is raised and argued in the briefs of counsel whether the mortgage embraced the title acquired from A. O. Frees. We think that the mortgage does embrace that title. It was within the agreement, as a part of the contract. When the mortgage was given, the mortgagor had no title; and it was agreed that, before the quitclaim deed and the mortgage should take effect, a good and perfect title should be procured. When the title was procured, the mortgage took effect in fact and by relation only at its date. Angel B. Frees sold to R. W. Frees a good and perfect title, and caused such title to be conveyed to him as the consideration of the mortgage; and it was a part of the agreement, implied at least, that the mortgage should be
The mortgage of the defendant Bonan was given long after the mortgage in suit took effect upon the title acquired from A. 0. Frees, and after its registration. It is not perceived how she can claim priority for her mortgage on such title. The authorities cited by the eminent counsel of the respondents do not appear to be applicable to the facts of the case.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to render judgment of foreclosure against the defendants.