213 Wis. 97 | Wis. | 1933
The appellant claims that the court erred (1) in opening the default judgments and (2) in denying
(1) As to the claim that the court erred in opening the judgment in the three cases and permitting the Praefkes to defend, it appears that in these cases, wherein summons was first served upon them, they took the papers to Har-graves and left to him the doing of whatever if anything was necessary for their protection; that he assured them he would take care of their interests but did nothing; that subsequently they were served with papers in the other actions and were advised by their banker to consult a lawyer; and that they followed the banker’s advice with the result that their lawyer answered in the other cases and procured the opening and leave to defend in the cases wherein judgments had been entered against them.
Opening a case wherein a default judgment has been entered against a party to permit him to defend is a matter in the discretion of the court. The ruling of the court will not be reversed except for abuse of discretion. It is manifest that in the instant case there was no abuse of discretion.
(2) Upon the merits it is clear that the judgments denying liability of the Praefkes for deficiency and upon the note are right. To have granted judgment imposing such liability would have been a travesty on justice.
(a) An agreement to assume a mortgage debt contained in a deed, to be valid as to a holder of the mortgage, must be valid between the parties to the deed. If void.as between them it is void as to everybody else. The holder of the mortgage can acquire no better right against the promisor than the promisee has. Dixon v. Davidson, 202 Wis. 19, 231 N. W. 276; Gill v. Robertson, 18 Colo. App. 313, 71 Pac. 634; Peilecke v. Cartwright, 213 Iowa, 144, 238 N. W. 621; Shamburg v. Mathiesen, 122 Neb. 517, 240 N. W. 559; Blass v. Terry, 156 N. Y. 1022, 50 N. E. 953; Becker
(b) The appellant claims the Praefkes are estopped from denying their liability because it was induced by reliance on the assumption clause in the deed to refrain from taking action that it would otherwise have taken. It certainly was not induced to take its mortgages by reliance on the clause, as its .assignments long antedated the execution of the deed of the Praefkes. However, the precise ground of appellant’s claim of estoppel- is that it was induced by the assumption clause to refrain from commencing foreclosure of its mortgages until after the plaintiff had begun its foreclosure actions. The delay, according to appellant’s claim, was from May, 1930, to June, 1931. Assuming this to be true, and assuming that the doctrine of equitable estoppel is that one is- estopped from defending against his representation of promise' in reliance on which another has taken steps to his
By the Court. — The judgment of the circuit court is affirmed.