Schmidt v. Schmidt's Estate

123 Wis. 295 | Wis. | 1904

WiNsnow, J.

The admission of parol evidence tending to show that the sum named in the note in question was an advancement from the father’s estate was error, for two reasons: First. Under our statute (sec. 3959, Stats. 1898) parol evidence is inadmissible to prove an advancement. Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430. Second. Irrespective of this question, it was inadmissible because it tended to contradict and set at naught the plain terms of an unambiguous written contract.

If it was claimed that the note was executed by mistake, and did not express the intent of the parties, this fact could only be proven when properly alleged by an equitable counterclaim. Casgrain v. Milwaukee Co. 81 Wis. 113, 51 N. W. 88.

It seems to be admitted in both briefs that one of the objects sought by the plaintiff was to establish a vendor’s lien upon the land purchased by the deceased in favor of the plaintiff, and it is suggested in respondent’s brief that forty acres of the land purchased constituted the homestead of the deceased. As this question has 'not been tried, and the testimony on the question is at best of a fragmentary character, we shall not attempt to decide it, but shall send the case back for a new trial, when this question, if it arises, can be satisfactorily tried. In so doing it is not improper to call attention to the fact that no formal complaint asking for such relief appears in the record, and also the fact that this court has held that sec. 2271, Stats. 1898, which provides that the homestead shall descend free from all judgments and claims against the deceased owners with certain exceptions, abrogates the right to a vendor’s lien thereon. Berger v. Berger, 104 Wis. 282, 80 N. W. 585.

By the Court. — Judgment reversed, and action remanded for a new trial.