153 Wis. 140 | Wis. | 1913
The main contention of the plaintiff is that the court erred in holding that the mortgage from Neitzke to Steinmueller was a valid instrument. The mortgage was properly executed and recorded and states that it was given to secure an alleged promissory note of $690.10. A written paper in the form of a promissory note for this amount and
“The rule of Follett v. Heath is not to be extended beyond the facts in the case then before the court. The facts there were, that the mortgage gave a totally false description of the note intended to be secured, or which was so claimed. The description was false and foreign in every particular, save that the names of the parties to the note, maker and payee, were correctly given. The note described differed, in amount, date and time of payment, altogether from that held by the mortgagee.”
In the instant case there is no such infirmity in the transaction between the parties. There is no dispute but that the mortgage correctly describes the written paper except as to the signature, and correctly states the amount of the debt due Steinmueller from Neitzke and the terms and conditions: agreed on by the parties for payment of the debt. It is manifest that Neitzke, through inadvertence, omitted to sign this intended promissory note as the parties had arranged, and that on this account it never became a promissory note. It is, however, a correct memorandum of the amount of Neitzke’s indebtedness to Steinmueller and expresses the terms and conditions agreed upon by the parties for its payment, and corresponds with the description of it in the mortgage, ex
It is urged that the mortgage was duly paid and canceled before Steinmueller took any steps to get possession of the mare, because he failed to file an affidavit, as required by ch. 122, Laws of 1903, within ten days after selling another horse covered by the mortgage. The evidence shows that the mortgagor assented to have this horse sold under the mortgage and the proceeds applied in part payment of his debt. Under such circumstances the mortgagee is not required to file the affidavit specified in this statute. Hammel v. Cairnes, 129 Wis. 125, 107 N. W. 1089; F. A. Patrick & Co. v. Deschamp, 145 Wis. 224, 129 N. W. 1096.
We find no reversible error in the record.
By the Court. — Judgment affirmed.