Coyle v. Davis

20 Wis. 564 | Wis. | 1866

Dixon, C. J.

As to the plaintiff and her husband not having purchased in good faith and for a valuable consideration, we are of opinion that there is no evidence to support such a conclusion. The court below found that they were grantees by conveyances from Richard Jarman and wife, but did not find that the conveyances were either fraudulent or voluntary. The effect of this finding is, that they were purchasers in good faith and for value. Whether the judge intended so to find or not, an examination of the evidence convinces us that such ought to have been the finding.

The court also found that at the time of the conveyance of the equity of redemption by Richard J arman to the defendant Fdward Pavis, it was verbally agreeed between Jarman and the defendants Joseph and Fdward Davis, that Jarman should be released from all personal liability to pay the amounts secured by the mortgages, and that Joseph Davis should rely upon Fdward Davis and the lands described therein for the payment of the same. This finding is fully justified by the evidence, and its correctness not questioned by the counsel for the defendants. Upon this finding we think the judgment must be reversed, and that upon the cause being remanded the plaintiff will be entitled to judgment in her favor for the relief demanded in the complaint as to the mortgages owned by the defendant Joseph Davis, namely, the mortgage to himself and the Griffiths and Prentiss mortgages. The mortgage to Daniel Davis, it seems, was never owned by Joseph, and consequently his agreement to release the personal liability of Jarman can have no effect upon that mortgage in the hands of Daniel.

Our reasons for this opinion are the same urged by the counsel for the plaintiff, and may be thus stated. The plaintiff and her husband, by their purchase of a portion of the mortgaged premises, acquired the right to redeem from all the mortgages, by paying the entire mortgage debt, and then to obtain satisfaction by the foreclosure and sale of the residue of the premises, and if they proved insufficient, to resort to the personal liability of Jarman, the mortgagor. This right of action against Jarman personally, either before or after foreclosure and sale, was or might have been a very valuable right; and after the death of her husband and before the conveyance to Ddward Davis and the release by Joseph, the plaintiff was in a situation to have acquired it, both as to the land conveyed to her husband and as to that conveyed to herself. By the release, Joseph Davis, with full knowledge of the facts, deprived her of this right. He put it beyond her power to acquire it, still leaving the mortgage a burthen upon the estate in her hands. Can he insist upon the burthen and at the same time deprive her of any material benefit or advantage incident to her obligation to discharge that burthen ? We think not. She stands in the relation of a surety for Jarman, and any agreement between Joseph Davis and him, which operated to diminish her security or to increase her liability, was a release of all obligation on her part. The right of insisting upon the personal liability of Jarman, was one of the safeguards of the plaintiff’s title, and, by voluntarily depriving her of that, Joseph Davis deprived himself of the right of insisting upon the liens of his mortgages upon the lands owned by her. She is accordingly entitled to have them discharged.

It is objected that the plaintiff lost nothing by the release, because she has the same remedy over against Jarman upon the covenants of his deeds to her and to her husband. This is not so, or at least it is very doubtful. On the covenant of warranty the measure of damages is the consideration money and interest. In an action for the breach of the covenant against incumbrances, it has been held that the true measure of damages is the amount paid to remove tlie incumbrance, with, interest, provided the same does not exceed the consideration money and interest. Dimmick v. Lockwood, 10 Wend., 142; Foote v. Burnet, 10 Ohio, 334. In this case the sums due upon the mortgages greatly exceeded the price or value of the lands owned by the plaintiff, and she might be obliged to pay much more than the consideration money and interest in order to remove the incumbrances.

It is furthermore objected that in place of the personal liability of Jarman, the plaintiff has that of Fdward Davis, who took title to his part of the mortgaged premises subject to the mortgages and covenanting to pay and satisfy them. It seems almost needless for us to observe that the substitution of the personal liability of Fdward Davis for that of Jarman, though good as between Jarman and Joseph Davis, is not obligatory upon the plaintiff without his consent, of which there is not the slightest evidence.

Again, it is objected that the agreement to release Jarman is void because it was not reduced to writing and signed, and because it was without consideration. Neither of these objections is well taken. The agreement, having been fully performed by Jarman according to its terms, by the conveyance to Fdward Davis and his acceptance of the grant, is binding upon Joseph Davis, although resting in parol. Joseph Davis is as much bound to the performance as he would have been if the conveyance had been made to himself, or as he would have been to pay Jarman a sum of money agreed upon as a consideration for the conveyance. It is in effect the same as if the conveyance had been made to himself, and hence there is no want of consideration. The agreement being fully executed by Jarman, Joseph Davis cannot accept and enjoy the' benefit of it, either by himself or his brother Fdward, and at the same time repudiate the obligation to perform on his own part. Any loss by the promisee, as well as any gain by the promisor, constitutes a valid consideration for a promise.

By the Court.- — -The judgment is reversed, and the cause remanded with. directions to enter judgment for the plaintiff in accordance with this opinion.