Jordan v. Estate of Warner, 107 Wis. 539

Jordan v. Estate of Warner

107 Wis. 539 | Wis. | 1900

Maeshall, J.

The following propositions are presented for review on this appeal: (1) the court erred in referring all the issues to a referee to hear, try, and determine; (2) the demurrer ore tenus should have been sustained, (a) because the facts stated in the complaint are not sufficient to constitute a cause of action, and (b) because such .facts are not sufficient to show that a court of equity has jurisdiction; (3) plaintiffs should have been required to elect on which cause of action they would rely; (4) there were errors in rulings on objections to evidence; (5) the evidence does not show that the conveyance of November 11, 1884, is a mortgage; (6) there were numerous errors in stating the account; (7) if the contract of November 11, 1884, is usurious, relief therefrom was not proper under the statute without a return of the principal of the debt, or, on equitable grounds, without a tender of the principal of the debt and legal inter*550est. Each of such propositions will be considered so far as. the decision of the appeal seems to require.

1. Sec. 2864, Stats. 1898, authorizes a compulsory reference of all issues in an action, whether of law or of fact, when the trial of an issue of fact therein requires the examination of a long account upon either side. This case is squarely within the statute. Druse v. Horter, 57 Wis. 644, upon which appellant relies, does not affect the question. That was a suit in equity where, it was said, the law as to compulsory references does apply. There can be no doubt of the discretionary power to refer the case, and we cannot say such power was abused, since the suit was on an account, and the other matters, however necessarily triable with the main issue, were merely incidental to it. Littlejohn v. Regents of University, 71 Wis. 437.

2. The suggestion that the demurrer ore tonus should have been sustained is based on some decisions of the supreme court of North Carolina, to the effect that a deed, absolute in form, cannot be varied by parol so as to show that it was intended to be a mortgage, unless the mortgage feature was omitted from it by fraud or mistake. That was the common-law doctrine in equity. Other state courts besides that of North Carolina adhere to it. There are several answers, however, to the proposition: (a) The great weight of authority in this country, where the subject is not regulated by statute, including that of the supreme court of the United States, is that, whatever form a conveyance of real estate may take, it may be shown in equity, by parol, to be a mortgage, if that was its purpose in fact; and in code states, where what were formerly actions at law and suits in equity are triable in the same court, the distinctions between them having been abolished, the true character of a conveyance, absolute in form, given as a mortgage, may be shown by evidence aliuncle, including parol evidence, whether the question be raised by a direct action for equitable relief or *551be incidental to legal relief. 1 Jones, Mortgages, p. 282, ch. 8. (b) The rulo in this state is in accordance with the great weight of authority. It was early established here, the first case being Rogan v. Walker, 1 Wis. 527. The following are a few of the other cases in this court on the subject: Kent v. Agard, 24 Wis. 378; Kent v. Lasley, 24 Wis. 654; Harrison v. Juneau, Bank, 17 Wis. 340; Sable v. Maloney, 48 Wis. 331; Hoile v. Bailey, 58 Wis. 448; McCormick v. Herndon, 67 Wis. 648; Becker v. Howard, 75 Wis. 415. An examination of those cases will show that no discrimination is made between legal and equitable actions as to the jurisdiction of the court. The rule is not inconsistent with the statute of frauds nor the principle that a written contract cannot be varied by parol; though statements to the contrary are sometimes found in the books, including some of the decisions of this court. It recognizes and gives effect to two very familiar elementary principles of evidence, namely,-parol evidence may be resorted to to prevent the inequitable or fraudulent use of a written instrument; and, a written instrument, made in part execution of an entire verbal contract and covering some essential part of it, does not preclude showing the entire contract by a resort to parol evidence. In Kent v. Agard, supra, the only question presented was, Is a person confined to the remedy in equity to enforce his rights as mortgagor when such is the real relation between the parties but the written evidence does not disclose that fact ? and the point was decided in the negative. (c) The last ground upon which the demurrer was properly overruled is that facts were alleged in the complaint showing with reasonable clearness that the deed and the contemporaneous transactions between the parties constitute a mortgage, and that the evidence of it is contained in the writings made by the parties. The written instrument given by Warner to the Jordans at the time the deed was executed, which is set forth in full in the complaint, *552clearly shows the character of the deed. Some further reference will be made to the evidentiary character of that writing when we reach another branch of the case.

It does not require any particular form of words to make a mortgage. Mere form has very little to do with the matter. It is a contract rvhereby an interest in property is pledged as security, which creates the relation of mortgagor and mortgagee. If, in the execution of such a contract, a paper is made evidencing a part of it, and other papers be made at the same time evidencing other parts, all may be resorted to and all must be construed together if necessary in order to determine the real nature of the transaction. If any of the papers satisfies the essentials of the statute of frauds (sec. 2302, Stats. 1898) as to the necessity of every estate or interest in land created inter partes being created in writing, the other essentials may be shown, if not evidenced by such writings, either by other writings which form a part of the same transaction, or by parol evidence, as before indicated. Jones, Mortgages, § 60.

3. The court properly overruled the motion that plaintiffs be required to elect on which cause of action they would rely, for the very obvious reason that there was but one cause of action. The sole primary subject of the litigation was the alleged indebtedness of the estate to plaintiffs. The other matters presented for adjudication were mere incidents of and germane to the primary right which plaintiffs sought to vindicate.

4. It is sufficient to say, as to most of the rulings on evidence, that, right or wrong, thejr did not affect the final result, because the evidence to which they were directed clearly did not vary or materially add to the evidence received without objection. Under this head the ruling most relied upon as prejudicial error appears to be that which resulted in admitting the evidence of John Bottensek and some tabulated statements prepared by him, showing the *553lands sold by Warner, the consideration received for eacb specific tract, as indicated by the records of deeds in the office of the register of deeds for Outagamie county, also showing the amount of tax claims acquired by Warner as to each tract of land, that information being gathered from the tax rolls for the years 1889 to 1894 inclusive. All the records from which the tabulated statements were compiled were before the court. The witness testified that he prepared the statements from a personal examination of the books and that he believed them to be true. Appellant’s counsel had ample opportunity to cross-examine the witness and to inspect the books, and thereby test the credibility of the evidence. It can readily be seen that it was impracticable to produce and spread upon the record of the trial the history of each one of the large number of tracts of land to which the evidence referred. Respondents’ counsel proceeded in that situation by a method well recognized as proper. Instead of reading in evidence the material portions of the numerous books containing the multitude of items, he produced the books and then gave from the mouth of a witness who had personally examined them a summary of the material facts, and put in, as part of such witness’s evidence, tabulated statements thereof. The statements were not received as original evidence but as part of the' witness’s evidence. The rule which sustains that course is stated in Jones on Evidence at section 205, and is well supported by authorities, as follows: “Another relaxation of the rule based on the necessity of the case may be thus stated: Where the originals consist of numerous documents which cannot be conveniently examined in court, and the fact to be proved is the general result of an examination of the whole collection, evidence may be given as to such result by any person who has examined the documents and who is skilled in such matters, provided the result is capable of being ascertained by calculation.”

*554It seems that the rulings on evidence not particularly referred to must be deemed immaterial, on the principle that such rulings, made in a case tried by the court, cannot affect the result on appeal unless it be made to appear that contrary rulings would or might probably have led to a different, result below.

5. We think the finding, that the deed of November 11, 1884, in view of the accompanying transactions, was a mortgage, is well supported by the evidence. It is difficult to understand how any other conclusion could be reasonably arrived at. The transactions between the parties commenced by the creation of an indebtedness of $1,010.10, for which Jordan gave Warner his promissory note, depositing with him the tax certificates and redemption receipts mentioned in the writing of that date signed by Warner, which is set forth in full in the statement of facts. November 11, 1884, the amount due Warner was agreed upon between the parties at $2,146.03. If the deed then given was intended to be a satisfaction of the de'bt, the reasonable probabilities are that the consideration named in it would have corresponded with the indebtedness. That subsequent transactions were contemplated between the parties, on the theory that the $2,146.03 was to continue, after the execution and delivery of the deed, an indebtedness of Jordan to Warner, is evidenced by the writing then made, which is as clearly a part of one entire transaction between the parties as the deed. In such writing we find unmistakable evidence that the relations existing between the parties were those of mortgagor and mortgagee and of debtor and creditor. While it recites that Warner received a conveyance of certain lands, that is followed by this significant language: “Whereas I hold claims against said lands and other lands of said Jordans for taxes and tax deeds as charged in my book of account at this date against W. D. Jordan’s lands, of $2,746.03,” and that is followed by language to the effect that the lands *555were to be sold on account of the indebtedness mentioned, and those remaining, after payment of the indebtedness of $2,746.03 and the expenses incurred by Warner in protecting the lands from tax claims, provided that should occur within five years, should be reconveyed to the Jordans. Now if the deed was given -with intent to convey the legal title to the property to Warner, why the recital that he held tax claims thereon ? They were all merged into the legal title if the deed was made as an absolute conveyance. The statement under Warner’s hand that he held tax claims against the. lands in the nature of indebtedness against Jordan, after receiving a conveyance of the property, is plainly inconsistent with any reasonable theory, except that adopted by»the court below, that the relation of mortgagor and mortgagee was created November 11, .1884, and that it continued to the end. The limit of five years for the redemption of the lands, named in the writings, had no more effect on the right to redeem thereafter than the ordinary defeasance clause in a mortgage upon a default in the condition thereof which gives force to such clause. At the expiration of the five years, Warner had a right to demand payment of any balance then due him from Jordan and to institute proceedings to recover such balance at law or to enforce his mortgage in .the ordinary way.

There are many other circumstances to which we might refer to support the decision of the lower court on the point above discussed', but we will not incumber the books with a long discussion of the evidence to give merited significance to them. There are many such circumstances plainly pointing to the conclusion which the trial court reached, but such conclusion is well and sufficiently supported by the writings alone, to which we have particularly referred. There is no doubt but that a conveyance, absolute in form, cannot be turned into a mortgage without clear and satisfactory evidence that it was so intended by the parties thereto; but the decision appealed from easily stands that test.

*5566. It is said that it was’improper to charge the estate the amounts received by Warner on the sale of the lands held by him under the tax deeds. It is sufficient to say as to that, that the tax titles Warner obtained were all based on certificates which came to his possession while he was the mortgagee of respondents in respect to the lands covered •by them. Tax deeds taken under such circumstances have no binding validity. They do not change the title to property covered by them in the slightest degree, if the owner thereof sees fit to enforce his rights. Geisinger v. Beyl, 71 Wis. 358; Avery v. Judd, 21 Wis. 262; Morgan v. Hammett, 34 Wis. 512. It should be further remarked that the evidence clearly shows that all the certificates upon which the tax deeds obtained by Warner were based were either included in the settlement of November 11, 1884, or were thereafter charged as debit items in Jordan's land account. They were either held as security by agreement with the Jordcms or were taken up by Warner to protect his mortgage interest in the land. In either case the tax deeds were invalid.

Appellant’s counsel, by one exception, complain because, in stating the account, the court gave respondents credit for the lands sold by Warner at the sale price instead of according to the entries made in the land account. It is considered that no injustice was done the estate by the manner the referee stated the account. Tie credited respondents with the sale price of the lands and charged them with •all sums of money Warner paid out for tax claims thereon, and all of his legitimate expenditures in and about the business, in accordance with the writing of November 11, 1884.

There are a number of other alleged errors in the account •as settled by the lower court, cited to our attention, which appear to be easily reconciled with the record without changing the final result, except one. With that exception we must rest the case with the assurance that each of the alleged *557errors in the account has been carefully examined, and that it has been found that a correction of them where wrong, so as to make them conform exactly with the record, would not change the result. Most of them are evidently mere clerical errors made in preparing the findings from the minutes which the referee bad before him. Quite a number of mistakes were made in descriptions of land, but the amounts credited to respondents in the aggregate are correct, with the one exception mentioned. All the errors in the account would undoubtedly have been promptly cured in the court below if attention had been called to them in such a way as to have brought them definitely to the attention of the circuit judge. They might properly be discarded here because of the omnibus character of the exception to the finding. A general exception to a finding covering a large number of matters correctly found with a few not so found is not sufficient to require the court to review an assignment of error as to the erroneous items, any more than is a general exception to several specific findings of fact where some of them are correctly found. However, the appellant has not been prejudiced in this case by the want of care indicated in making the exceptions.

There is a charge of $150 as the sale price for the northwest quarter of the northwest quarter, section 20, 23, 16, the same description being charged in connection with another account. Counsel for respondents is not able to furnish any explanation of that error. It is suggested that it may not have been carried forward into the final result, but it seems that the presumption is rather the other way. It is. quite clear that the principal of the indebtedness of the estate as found by the referee is erroneous by $150. We have not the benefit of the referee’s interest computations, but we have stated the account with considerable care, including interest items, though we have omitted them from the opinion, and that seems to demonstrate that the apparent. *558error of $150 is one in fact and that the judgment should be modified accordingly. The modification, in order to include a correction of an erroneous addition of interest which necessarily followed the erroneous addition of $150 of principal, is $198.35.

Objection is made because the referee refused to allow the estate credit for the services of Warner in selling the land. The decision in that regard is justified by the finding of fact supported by the evidence that the greater part of the lands were -wrongfully sold. They were sold without the knowledge or consent of the Jordans. Obviously, if a trustee be guilty of a breach of trust, he cannot charge his cest/m que trust for services rendered in the course of committing the breach.

7. Sec. 1692, Stats. 1898, which requires the plea of usury to be supported by proof of a tender of the principal of the debt as a condition of relief from the usurious contract, and the rule that usury, to be available, must be pleaded, are fully satisfied by the fact that the usurious contract in question was set forth in the complaint, which clearly shows the invalidity as to interest, and the further fact that the principal of the indebtedness was fully paid by the Jordans by credits they received or were entitled to from the sale of their lands, long before the commencement of this action.

Nothing further need be said. The judgment of the .circuit'court must be modified by deducting $198.35, and affirmed as modified, and the costs of respondents recoverable in this court must be limited to clerk’s fees.

By the Court.— So ordered.

Cassodav, C. J., took no part.