158 Wis. 305 | Wis. | 1914
Lead Opinion
It is held in this case:
1. The original transaction between Franz and his parents, by which Franz agreed to pay certain sums to Walentine -and Gertrude respectively in consideration of the conveyance of the farm, and executed a mortgage to secure such payments, established the relation of debtor and creditor between Franz and each of the beneficiaries, which relation could not be changed merely by agreement of the parents and Franz without the consent of the beneficiaries. Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440.
2. Under the facts found by the court the plaintiff Walen-tine was plainly estopped from asserting any claim under the agreement or mortgage.
3. Not only is Walentine estopped, but he is barred by the twenty-year statute of limitations. Sub. 2, sec. 4220, Stats.
4. Gertrude, not being estopped or barred by the statute’ of limitations, is entitled to foreclose the mortgage for the-amount due her under the agreement, with interest.
By the Gourt. — That portion of the judgment dismissing the complaint, with costs, as to the plaintiff Walentine is affirmed with costs, and the remainder of the judgment is-
Dissenting Opinion
In tbis case I dissent from tbe conclusion tliat the promisor and promisee, in a contract executory on tbe part of the promisor but executed on tbe part of the promisee, which contract contains a promise to pay a sum of money to a third person who parted witb no consideration, cannot, while tbe contract remains executory and unperformed on tbe part of tbe promisor, rescind that contract and return tbe consideration to the promisee without tbe assent of such third person and without tbe aid of a court. In Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440, the contract bad been executed according to its terms between tbe immediate parties thereto, and to say tbe least tbe rule of that case should not be extended. Suppose tbe rule of the majority opinion in tbis case were applied in a case like Dilger v. McQuade, post, p. 328, 148 N. W. 1085, if the immediate parties bad attempted a rescission?
I am .authorized to say that Justices Siebecicee, and Kee-wiN concur in tbis dissent.