Tio v. Brown

131 Wis. 573 | Wis. | 1907

Winslow;, J.

This is an action to reform and foreclose a mortgage executed by the defendants George W. Brown and Joseph L. Schallaire to the plaintiff March 1, 1895. The description of tbe mortgaged premises contained in tbe mortgage was so indefinite and uncertain that it in fact described no property, and tbe complaint charged that this was tbe result of mistake by tbe scrivener, and it was sought to reform tbe mortgage by inserting a description of certain lands which it was claimed were intended to be mortgaged. It appeared upon tbe trial and was found by tbe court that in March, 1899, tbe plaintiff sold and assigned tbe mortgage in question to one Caroline Jessup, and that she thereafter brought an action to foreclose tbe same against tbe respondents Brown and others, in which action judgment was rendered declaring tbe mortgage void because it wholly failed to describe any real estate. It was further found that after rendition of this judgment Caroline Jessup sold and transferred tbe note and mortgage back to tbe plaintiff.

Thus it appears that in an action upon this same cause of action, brought by tbe plaintiff’s grantor against tbe same defendants, a court of competent jurisdiction has held tbe mortgage in question void and incapable of enforcement. Whether tbe decision was right or wrong it is res adjudícala in another action between tbe same parties or their privies upon tbe same cause of action as to all matters which were litigated or might have been litigated in tbe former action. Grunert v. Spalding, 104 Wis. 193, 80 N. W. 589.

Tbe court also found that there was no sufficient proof to show what particular premises were attempted to be mortgaged, and hence that there could be no reformation. As the former judgment is conclusive between the.parties, we do not find it necessary to discuss the question whether the court was right on the last-mentioned proposition, although from our examination of the record we see no reason to doubt the correctness of the conclusion reached.

By the Court. — Judgment affirmed.