Forest Lawn Co. v. Hanley

94 Wis. 23 | Wis. | 1896

Newman, J.

Tbe transaction involved in this litigation is not questioned for fraud or any mistake, nor is it sought in any way to reform it or to set it aside, but merely to enforce it. Tbe only question seems to be to' determine its proper purpose and effect. The trial court found as a fact “ that tbe said land contract was in fact a mortgage given to secure and securing tbe defendant Ann Hanley, from tbe plaintiff, tbe sum of $1,500, with interest.” This can be true only in case sucb was the intention of tbe parties in tbe making of it; for, although fraud or mistake might afford ground for its avoidance or reformation, they could not make it a mortgage contrary to tbe intention of tbe parties. Tbe whole case turns upon tbe correctness of this finding. There was due exception to it. Tbe sole question is whether the evidence sustains it. To support it, the evidence must show that the parties, at the time of its making, understood and intended that the plaintiff should repay to Mrs. Manley the $1,500, with interest, and to secure such repayment by a pledge of the land. It is plain that the case is utterly void of evidence which tends, even, to establish such intention. The plain words of the contract itself establish the reverse, for in express terms it provides that the plaintiff shall not be liable to repay it, but that it shall be deemed forfeited in case the remaining payments are not made as therein agreed. In the absence of fraud or mistake, the words of the contract must govern, and the contract be enforced as written. Nor is parol evidence permissible to contradict or vary its terms. This is elementary.

There is no evidence tending to show that Mrs. Hanley did not know the terms in which the contract was written, or was in any way deceived or misled as to its actual terms. That she misconceived its effect is not improbable.' She understood that the taking of the contract in her own name in some way made the land stand to her as security for the repayment of her money by Mrs. Gorman. She was advised that in that way the contract would be as good security to her as a mortgage upon the premises. No doubt the transaction was in that respect, in equity, a mortgage upon Mrs. Gorman’s interest in them. She was told that it would be ample security. Whether it was ample security would depend upon the value of the premises and the making of the later payments. It does not appear that the premises were not worth the agreed price, nor that the transaction was not an adequate security. It is not competent to predicate fraud upon mere opinions of the value of property as security. Clearly, the finding has no support in the evidence. Whatever remedy Mrs. Hanley may have against the plaintiff, clearly she has no mortgage. The finding and judgment are clearly in misapprehension of the legal effect of the evidence. It cannot be tolerated that a hard case shall make bad law. The plaintiff should have judgment foreclosing its contract.

By ike Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause remanded with direction to render judgment in favor of the plaintiff •for the foreclosure of the contract.