Sage v. McLaughlin

Jan 15, 1874

Reporters:
Before:: Lyon

Lyon, J.

1. It appears from the uncontradicted evidence, or is proved by a clear preponderance of the testimony, that Lucy A. Sage, who is the wife of the plaintiff, was the owner *555of the $1,000 note and mortgage, the same being her separate property; that she loaned $1,000 to the defendant McLaughlin, for which loan they were given; that such loan was negotiated for McLaughlin by E. 0. Sage as his agent, who, pursuant to an agreement with McLaughlin, and without the knowledge or consent of Mrs. Sage, retained $50 of the loan for his services. This is the transaction upon which the claim of usury, set up in the answer of McLaughlin, is predicated. E. 0. Sage did not act as the agent of Mrs. Sage, and clearly there was no usury in the transaction. Ottillie v. Wœchter, 33 Wis., 252.

2. It further appears, in like manner, that Mrs. Sage sold the note and mortgage to her husband, the plaintiff, and transferred and assigned the same to him through a third party, after which, and a short time before the same became due, the plaintiff had a negotiation with the defendant Wright (who was the duly authorized agent and attorney in fact of the defendant McLaughlin, and acted for him) in relation to such note and mortgage ; and such negotiation resulted in the purchase by plaintiff, for McLaughlin, of the Templeton note and mortgage, and an extension of the time of payment of both debts over two years. In the progress of that negotiation, Wright represented to the plaintiff that the debt for which the note and mortgage for $1,000 were given to Mrs. Sage, was an honest debt, and would be paid ; and the plaintiff evidently acted on the faith of such representation. It can not be reasonably supposed that the plaintiff would have paid the Templeton mortgage, amounting to nearly $1,000, and then extended the time for the payment of both debts for so long a period, if Wright had told him what McLaughlin asserts in his answer, that the note and mortgage to Mrs. Sage were usurious and void, and that he did not propose to pay them. McLaughlin is bound by the representations of Wright made during the negotiations and relating to the subject matter thereof; and he is estopped to set up the defense of usury to the note and mortgage, after his authorized agent had made representations to the contrary *556to the plaintiff (who knew nothing of the alleged usury), which induced him to advance his money for the benefit of McLaughlin, and to extend the time for the payment thereof. This principle was recognized and enforced by this court in Campbell v. Babcock, 27 Wis., 512. Hence, if the note and mortgage in question were usurious, the defendant McLaughlin can not be permitted to assert such usury as a defense thereto, under the circumstances of this case. But we have already seen that they were not usurious.

8. The deposition of Mrs. Sage was admitted in evidence against the objection of the defendants. She deposed therein, in substance, that she advanced $1,000 on account of such note and mortgage; that she knew nothing of any usury in the transaction; and that she afterwards sold and transferred such note and mortgage to her husband. If the admission of this deposition was error, it was an immaterial one, because every material fact to which Mrs. Sage deposed was abundantly proved by other testimony. But we think that the deposition was properly received. The statute conferred upon Mrs. Sage the power and right to sell and transfer these securities to her husband, or to any other person, “ with like effect as if she were unmarried.” Tay. Stats., 1195, § 2. Had she been unmarried when she transferred them, one effect of such transfer would •have been to render her a competent witness to disprove the allegation of usury. This is to her a valuable right, because her testimony might, disprove the usury, and save her from the obligation to refund the consideration which she received therefor, in case the securities were adjudged void for usury. This right is also an element in the value of the securities. Of course, the greater the facilities for proving their validity, if their validity is assailed, the greater their value. In view of these considerations, we are unable to perceive how we can give to the transfer of the note and mortgage by Mrs. Sage to her husband the effect which a transfer thereof by her would have were she unmarried, without holding that she is a competent witness for *557ber husband to disprove the alleged usury. But the question not being a controlling one in the case, it is not deemed necessary to discuss it further.

4. It satisfactorily appears that a sufficient notice of the pen-dency of the action was filed in the proper office in due time. It is objected that the filing thereof was not proved on the trial. That fact is no part of the issue, and need not be proved on the trial. It is sufficient if it be made to appear to the court at any time before judgment. And it will be presumed, in favor of the regularity of the judgment (nothing appearing in the record to the contrary), that the court had before it proof of the due filing of such notice. Webb v. Meloy, 32 Wis., 319.

5. The objection that the complaint only prays a strict foreclosure (and such is the substance of the prayer), and that the court erred in rendering judgment of foreclosure and for the sale of the mortgaged premises, is not well taken. The complaint states facts which show, and the answer alleges, that the conveyance to E. C. Sage for the benefit of the plaintiff, and the agreement to reconvey on payment of the amount of the notes and mortgages, constituted a mortgage; and the court very properly disregarded the prayer of the complaint, and rendered judgment in accordance with the allegations of the parties in that behalf.

6. Thus far we find no error. But in another respect the judgment is fatally defective. It fails to provide for any redemption of the mortgaged premises after sale. Such provision is absolutely essential to the validity of the judgment. Jones v. Gilman, 14 Wis., 450; Van Nostrand v. Mansfield, 16 id., 224; Briggs v. Seymour, 17 id., 255; Carberry v. Benson, 18 id., 489. See also Walker v. Jarvis, 16 id., 29.

7. While, perhaps, there is a sufficient finding of facts and conclusions of law contained in the judgment, yet correct practice requires that these should be drawn up separately, and filed as the basis of the judgment. Perhaps the omission to do so would not, of itself, work a reversal of the judgment; but, *558to enable the plaintiff to procure and file such findings, we will reverse the judgment, instead of modifying it as was done in some of the cases abovemited. See Van Nostrand v. Mansfield, supra.

By the Court.— The judgment is reversed, and the cause remanded for further proceedings according to law.