Loyd v. Phillips

123 Wis. 627 | Wis. | 1905

Mahshall, J.

The facts alleged in the complaint make a good case for the interference of equity jurisdiction. Respondent obtained appellant’s land and obligation for $2,500, secured by a mortgage on land conveyed to appellant in exchange therefor, by representing that there was but a small incumbrance upon the latter land which he would promptly pay off. Instead of the incumbrance being small, it was in excess of one fourth of the value of the property. If we concede for the purposes of the case, that appellant was so negligent respecting his interest, in that he omitted to inform himself as to the amount of the incumbrances, that judicial remedies should not be afforded him to redress the wrong complained of so far as produced by the false representations referred to, yet there is the mistake, or something worse, on respondent’s part,-in that his agent in his presence, while assuring appellant that she would prepare the deed to be executed by respondent in accordance with a form placed before her, which consisted of a deed with full covenants, inserted in the draft in the covenant against incumbrances an exception as to mortgage indebtedness. It is difficult to' see why a court of equity should not relieve appellant from the effects that might otherwise flow from that serious departure from the agreement, since without such relief appellant would be left remediless for the wrong. Slight circumstances excusing appellant’s failure to examine the deed before accepting it are sufficient to prevent its being held, as a matter of law, that he was inexcusably negligent in tbat regard precluding any successful appeal on bis part to tbe courts for redress. Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246. Such circumstances abundantly appear in the allegations, that appellant intrusted the drawing of the deed to respondent’s agent as indicated; that in the face of a full understanding of the matter she failed to draw it in conformity thereto; that respondent obtained possession of the paper so soon after the execution thereof as to leave appellant very little time to discover its infirmity, lulling the latter into a sense of security by offering to act for him in placing the same immediately on record, at the same time assuring him, that the incumbrance should be speedily paid off. Respondent suggests that since payment of the mortgage indebtedness was not made a condition precedent to consummating the trade, his promise being taken instead, the delay in redeeming such promise or refusal to do so, was a mere breach of contract, for the redress of which legal remedies are amply sufficient, hence that equity jurisdiction should not lend its aid in the matter. In that counsel fails to give proper effect to the material circumstances, that respondent is insolvent; that the $2,500 mortgage may be by him transferred, atad that respondent threatens to do that which, if it were to occur, would render courts of law, and equity as well, incapable of protecting appellant from the consequences of the fraud or mistake. Assuming as we must that all the allegations are true, they exhibit a situation rendering legal remedies entirely inefficient to redress the wrong complained of. To shut the door of equity to appellant would violate the fundamental principle thereof, that equity suffers no wrong rising above mere moral transgressions to go unredressed in face of a seasonable clean-handed application to it for a remedy.

By the- Court. — The order sustaining the demurrer is reversed, and the cause remanded for further proceedings according to law.