Lee v. Wagner

71 Wis. 191 | Wis. | 1888

Cassoday, J.

The findings of the court are sustained by the evidence. It is confessed that the plaintiff’s notes and mortgage have never been paid nor surrendered. She is not seeking to make her mortgage a prior lien to Dolan’s. She concedes that she executed the release at the time his mortgage was given, for the very purpose of making her mortgage subordinate to his; but she insists that it was not intended for any other purpose, and should have no other effect. The transaction seems to have taken that form merely because Dolan and his counsel at the time demanded such release as a condition of making the loan to the husband. Seemingly, they supposed Dolan could in no other way obtain a priority of lien. No one else at the time seems to have desired such release. Its only purpose was to secure such priority. There is no evidence to warrant the belief that the husband exacted such release, or ever expected that it would operate as an absolute discharge of the mortgage as against him. Manifestly, the plaintiff had no such expectation. She executed the release, as she had the Dring release, because it was1 exacted for the purpose mentioned, and with no other intent. Neither Dolan nor his counsel represented the mortgagor, and had no authority to make any contract or exact any condition in his behalf. Whether the mortgage should be absolutely discharged of record was a matter in which neither of them had any interest or concern.

The question is whether the effect of the release shall be confined to the object for which it was made, or shall extend to a purpose not in contemplation of any of the persons concerned in its execution. That is, Did it operate as an estoppel against the plaintiff and in favor of the mortgagor and those claiming under him? The defendants are not here insisting upon such estoppel as subsequent Iona fide purchasers of the mortgaged premises, nor even as creditors. They are here merely as heirs at law of the mortgagor,— mere volunteers. The action is in equity, and yet they are contending, confessedly, without any equity. Their defense is based wholly upon a naked estoppel, without any consideration whatever to support it, and is made in order to secure an unmerited benefit by defeating a meritorious claim. The mortgage would have been a valid lien, as against such heirs, without ever having been recorded. The release or satisfaction was to the effect that such mortgage had been “fully paid, satisfied, and discharged.” Since the want of record would not bar the lien as against these defendants, the mere discharge of the mortgage on the record cannot prevent the enforcement of the lien as against them.

The question, however, recurs, whether the acknowledgment of payment and satisfaction, obtained-under the circumstances stated, estopped the plaintiff from showing that the mortgage was never paid or satisfied. So far as the mere acknowledgment of payment, it operated as a mere receipt, and of course was open to explanation by parol evidence. Gilchrist v. Brande, 58 Wis. 197; Hubbard v. Marshall, 50 Wis. 325, 326. It is, moreover, a well-established rule of law, that the payment of a part of an admitted indebtedness, due at the time, upon an agreement that it, shall be in full payment and satisfaction of the whole, is nudum jpactum and not binding upon the party making the same. Foakes v. Beer, L. R. 9 App. 605, 24 Am. Law Reg. 21; Daniels v. Hatch, 21 N. J. Law, 391, 47 Am. Dec. 169; Keeler v. Salisbury, 33 N. Y. 653. For exceptions, see Goddard v. O'Brien, 9 Q. B. Div. 37, 21 Am. Law Reg. 637, and notes. For a much stronger reason, such acknowledgment should not be binding where it is given, as here, without any payment or consideration, and under a misapprehension as to its meaning and legal effect.

By the Court. — -The judgment of the circuit court is affirmed.