74 Wis. 456 | Wis. | 1889
This action was brought to foreclose a mortgage given by the defendant Frederick H. Werner to the plaintiff, to secure a note for $700, and interest, given at the same time by said mortgagor to said mortgagee. The said Frederick H. Werner made default; but the said appellant, Dora F. Werner, an infant under the age of twenty-one years, appeared by guardian ad litem, and answered substantially as follows: “ That the defendant Frederick was indebted to her in the sum of $1,000, and that in consideration thereof he conveyed the mortgaged premises to her, after said note and mortgage were given, and that the plaintiff agreed “to take and hold this defendant (Dora) as his debtor for the $700 to secure the payment of which the said note and mortgage were given,” and discharge the defendant Frederick from said indebtedness. These facts the appellant offered to prove, but such offer was rejected by the court.
It is contended by the learned'counsel of the appellant that these facts constituted a novation, by which the indebtedness of said mortgagor, Frederick, was discharged, and, if the indebtedness was discharged, the mortgage security thereof was also discharged; and that the defendant Dora could not be held for said indebtedness, because she was, and is yet, an infant. This may be a very plausible theory by which, at one stroke of this deadly agreement, the plaintiff has lost his claim and all of the defendants are discharged; but it is as futile, gauzy, and transparent as it is inequitable and unjust. If the plaintiff ever accepted this infant, Dora, as his only debtor, and discharged Frederick, he was very simple and easily satisfied; and, if he knew or
By the Gourt.— The judgment of the superior court is affirmed.