Poole v. Tannis

137 Wis. 363 | Wis. | 1908

The following opinion was filed November 10, 1908:

SiebeckeR, J.

The court’s findings upon the conflicting evidence of the parties cannot be disturbed as being against the preponderance of the testimony. The evidence presented fully sustains the court’s findings, to the effect that there was an agreement that plaintiff should advance the money to defendant and that he was to use it to purchase a lot and in the construction of a house thereon, and that the repayment of the sum advanced should be secured by the house and lot. It is established that no part of the sum so advanced to defendant bas been repaid, and tbat a sufficient demand for payment bas been made and tbat payment bas been refused. While plaintiff by ber complaint demanded tbe specific enforcement of an oral agreement for a mortgage on tbe premises to secure tbis advancement, it is apparent tbat tbe evidence did not establish such an agreement because of tbe failure of tbe parties to specify any time when tbe mortgage was to mature and be payable. Tbis state of tbe facts failed to' establish a sufficiently certain and definite contract to mortgage tbe premises, and hence tbe court could not decree specific performance of it. Buck v. Pond, 126 Wis. 382, 105 N. W. 909. In tbe opinion of tbe trial court tbe allegations of tbe complaint and tbe facts proven to support them entitled plaintiff to recover in this action upon tbe ground tbat tbe plaintiff under tbe agreement made by tbe parties was to have a lien on tbe premises for tbe sum advanced defendant for tbe purchase of tbe lot and tbe building of tbe house, and tbe lien so agreed upon constituted a purchase-money lien. Tbe court awarded judgment to tbat effect. There is no contention in tbis case tbat tbe claim sought to be enforced arises out of a transaction between vendor and vendee and tbe facts clearly negative such a relationship. Hence tbe judgment of tbe trial court awarding plaintiff a vendor’s lien is not well founded. Bartle v. Bartle, 132 Wis. 392, 112 N. W. 471.

However, tbe question arises whether tbe plaintiff under tbe established facts is not entitled to tbe relief of an enforcement of an equitable lien upon the premises for tbe sums she contributed to tbe purchase of tbe lot and tbe building of tbe bouse thereon, in view of tbe fact that she relied on tbe agreement tbat tbe property should stand as security for tbe money she advanced to defendant to purchase and improve tbe lot, and defendant’s refusal, after full performance of tbe agree- - ment by plaintiff, to so secure tbe money advanced. It- is shown tbat tbe money was advanced by tbe mother to tbe son ujjon the understanding that its repayment should be Secured by a lien upon the premises, though the agreement established was not sufficiently clear and definite to provide for a mortgage security which she prayed should be specifically •enforced. It is also plain that the son, through this arrangement and the confidential relationship between himself and his mother, obtained the money from her to acquire this property and that he now refuses to carry out the agreement. The mother having advanced the money on the faith of the son’s promise and the defendant having used it for the acquisition of the property gives a basis for the interposition of equity to secure her a lien on the property and to enforce repayment out of it of the sum so advanced by her. Osgood v. Osgood, 78 Mich. 290, 44 N. W. 325; Hughes v. Mullaney, 92 Minn. 485, 100 N. W. 217; Leary v. Corvin, 181 N. Y. 222, 73 N. E. 984.

Plaintiff is entitled to judgment giving her a lien on the property and ordering a sale of the premises if the defendant fails to satisfy the judgment by payment of the amount due her, with costs.

By the Oourt. — Judgment reversed, and the cause remanded with directions to award judgment upon the findings in accord with this opinion.

The following opinion was filed December 18, Í908:

Per CueiaM.

It was not intended in this case to reverse the judgment of the trial court, but simply to point out that the plaintiff’s lien was not a purchase-money lien, as denominated by the trial court, but an equitable lien arising from the agreement under which the money was advanced. The intention of the court, after pointing out this distinction, was to affirm the judgment, because, in the situation of the present case, there was no material difference in the legal consequences of the two liens, and hence no prejudicial error. By inadvertence, boweyer, a mandate of reversal, instead of af-firmance, was entered, and the court now, of its own motion, •corrects the error and directs the entry of the judgment Vhich was intended.

By the Court. — The former judgment of this court herein is in all things vacated and set aside and the judgment of the trial court is affirmed.