49 Wis. 697 | Wis. | 1880
There is a dispute between the appellant and respondent as to the nature of the final transaction above
The action is brought upon section 1691, R. S. 1878, which reads as follows: “Every person who, for any such loan or forbearance, shall have paid or delivered any greater sum or value than is above allowed to be received, may, by himself or his personal representative, recover in an action against the person who shall have taken or received the same, or his personal representative, treble the amount of money so paid, or value delivered, above the rate aforesaid, if such action shall be brought within one year after such payment or delivery.”
It is insisted by the respondent that he sold his farm to the appellant, and paid these usurious notes by allowing the appellant credit for the amount of the same as a part of the purchase price agreed to be paid therefor by him. The learned
Admitting the transaction to have, been as the respondent claims it, it is insisted by the learned counsel for the appellant that he has failed to show a delivery to the appellant, within the meaning of such statute;, of any property in payment of these usurious notes. We think the learned counsel for the appellant is right in his conclusion. The whole evidence shows that the original transaction between the parties on January 3, 1878, was a loan of money by the appellant to the respondent, and that the absolute deed was, in fact, a mortgage given for securing the payment thereof, with interest. The respondent so understood it; he did not understand it as a conditional sale, lie treated the farm as his until January 25th, 1879; and occupied it as his own up to that date, and says he then sold it to the appellant for the sum of $3,733, and delivered the possession to him; but he fails to show that he conveyed to the appellant any title to the same.
Under the repeated decisions of this court, and especially the decision in the case of Brinkman v. Jones, 44 Wis., 498, it is held that the legal title to real estate does not pass to the mortgagee, no matter what the nature of the conveyance may be, which is given to him as security for his loan; and that when the evidence, either written or parol, establishes the fact that the relation of mortgagor and mortgagee exists between the parties, then the legal title to the real estate remains in the mortgagor, and such title can only bo divested by foreclosure and sale, or by some subsequent conveyance founded upon a sufficient consideration, and sufficient in the law to transfer
The mere destruction of the bond for a.deed given by the appellant to the respondent would not estop him from showing that the original deed was a mortgage. There is no evidence in this case which shows that the bond for a deed contained written evidence showing that the original deed was given as a mortgage security. On the other hand, such a bond for a deed, standing alone and unexplained, would tend to prove the relation of vendor and vendee between the parties, rather that that of mortgagor and mortgagee. If the contract made between the parties at the time the original deed was given, had been embodied in a written defeasance, showing that the deed was given to secure a loan of money from the grantee to the grantor named therein, and reciting the terms of such loan.and the conditions upon which the deed should become void, and the grantor had afterwards voluntarily destroyed such written contract and surrendered the possession of the mortgaged premises to the grantee named therein, he might be estopped from giving parol proof of such contract for the purpose of defeating the title of the mortgagee in possession, under the rule of evidence which prevents a party from giving parol evidence of a contract which has been reduced to writing by the parties thereto; and the party offering such parol "'’evidence would not be relieved from the application of the rule if it appeared that he had voluntarily destroyed the written evidence of such contract. This is the estoppel spoken of by Chief Justice Shaw in the case of Trull v. Skinner, 17 Pick., 213. The estoppel invoked in that case is not shown to exist in this case. The destruction of the bond for a deed does not destroy any written contract of the parties showing that the
We must treat the case, therefore, as stated by the respondent, as an agreement on his part to sell to the appellant the farm in question for the sum of $3,733; that the appellant has paid all the purchase money and entered into the possession of the lands under his contract of purchase; and, if the respondent should not object on the ground that the contract was tainted with usury, a court of equity would order the respondent to convey the legal title to the appellant; bnt, the respondent not having conveyed such legal title at the time this action was commenced, he cannot maintain it. The court below erred in holding that the transaction between the parties was a payment of the usurious notes by the respondent; and for that reason the judgment must be reversed. It will be unnecessary, therefore, to consider the question whether the court erred in permitting the deed given by the respondent to the appellant to be read in evidence upon the question of the value of the farm.
If we adopt the view of the transaction stated by the respondent himself, there would be no reason for inquiring as to the actual value of the farm. If the appellant agreed to pay the sum of $3,733, as the respondent says he did, and the respondent agreed to accept that sum in full satisfaction therefor, then the question as to its real value would not be in the case, as the parties had fixed the value as between themselves; and the only question would be, whether, in making the payment of this sum of $3,733, it was agreed that the appellant should take a credit to himself for the amount of these usurious notes, or for any part thereof. But, in the view we have taken of the case, it is unnecessary to inquire further as to this matter.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.