74 Wis. 289 | Wis. | 1889
I. Some questions affecting to a greater or less extent all of the propositions hereinafter discussed will first be considered.
1. It is objected by counsel for the defendants that the plaintiffs have failed to show that they are the owners of
But these assignments were made long after the debt became due, and hence the plaintiffs are entitled to no other or greater relief than the mortgagee would have been en•titled to had the assignments not been executed, and were he, instead of his assignees, the plaintiff in the action.
2. The defendant Ody W. Traynor testified on the trial as a witness in his own behalf and in behalf of his' code-fendants. He was allowed, under objection, to testify in chief to a great number of transactions and communications had by him personally with Henrj*- A. Whitney. Such testimony was adverse to the plaintiffs on all the issues in the case. It appears by the testimony of two physicians and other witnesses that for some months before the trial Henry A. Whitney was afflicted with softening of the brain, and constantly grew worse. He was over seventy years of age, and his disease was incurable. At the time of the trial it had progressed so .far that his memory was nearly gone, and he was unfit to do any kind of business. Within two weeks of the trial he fell into a comatose state, and remained unconscious sixteen hours. After consciousness
Sec. 4069, R. S., so far as the same is here applicable, provides that “ no party . . . shall be examined as a witness in respect to any transaction or communication by him personally . . . with a person then insane, in any civil action or proceeding in which the opposite party derives his title ... to the cause of action from, through, or under . . . such insane person.” The section contains other provisions, and certain exceptions not important here. The testimony of Ody W. Traynor above mentioned contravenes this rule. Such testimony should have been disregarded by the circuit court, and must be disregarded by this court in determining the case.
It was argued, however, by one of the .counsel for defendants, that no sufficient objection was made to the admission of such testimony. A general objection was interposed thereto when Ody W. Traynor commenced giving testimony of this character. Later in the trial the testimony as to the mental condition of Henry A. Whitney was introduced. Then Ody W. Traynor was recalled and asked by his counsel to give a statement of what Henry A. Whitney
3. The question whether the court adjudged too large a sum unpaid on the mortgage debt cannot be considered on the-plaintiffs’ appeal. The defendants must be deemed satisfied with the judgment in that behalf, unless they, or some of them, appeal therefrom.
II. We will now consider in their order the specific portions of the judgment from which this appeal is taken.
' 1. The plaintiffs claim that the sum adjudged unpaid on the note and mortgage should be increased several hundred dollars. The court found upon sufficient evidence that on April 22, 1878, Oily W. Traynor and Henry A. Whitney accounted together and settled all their accounts and transactions from the date of the securities to that time, and found a balance due Whitney on such settlement of $2,040.05. Of this sum, $1,040 was then indorsed on the note. It appears that Whitney then gave Traynor his check for $1,000, the proceeds to be paid to other creditors of Traynor, including Griswold. Traynor succeeded in obtaining an extension from such creditors, and in June following returned the check to Whitney, and the amount thereof was thereupon indorsed upon the note. The circuit court surcharged the account by crediting Traynor with $393.63 additional. The amount adjudged unpaid on the securities was obtained by allowing Traynor credit as of April 22, 1878, on the amount then unpaid on the note, principal and interest, the sum of $2,434.58, and computing interest on the balance at ten per cent, to May 8, 1888; that being the date of the findings and judgment. Al
We have not in the record the account books of the parties upon which such settlement was made, and no sufficient abstract of them to enable us to review their accounts intelligently. There is' no exhibit showing the items of the mortgagee’s account. Moreover, the testimony is voluminous and confused, and, without the books or proper abstracts of them, much of it is practically unintelligible. The learned circuit judge had the accounts and books before him, and was in a much • better position to review the accounts and ascertain the true balance than we are. The imperfect record before us furnishes no safe basis for judgment on this branch of the case, and we are compelled to affirm that part of the judgment of the circuit court which determines the amount unpaid on the note and mortgage.
2. The circuit court found and adjudged that, as to the homestead of Phillip Traynor, the mortgage was satisfied and had ceased to be a lien thereon. The whole consideration for the note and mortgage, except about $150, was the indebtedness of Ody W. Traynor to Henry A. Whitney; the $150 was a debt owing to the latter by Phillip Traynor. It does not appear that Phillip made any payment on the mortgage debt. Ody W. Traynor testified to an oral agreement between himself and the mortgagee to the effect that when $700 should be paid on the debt Whitney should release the homestead of Phillip from the lien of the mortgage. There is no other testimony to that effect. The finding and judgment that the homestead should be so released are only sustained by this testimony. Rut, having determined that the testimony is inadmissible and must be disregarded, there is no sufficient basis for the judgment in
3. The next question is, Was the lien of the mortgage in suit properly postpomed to that of Griswold's judgment, recovered against Ody W. Traynor in 1887? When the sécurities were executed it was agreed between the mortgagee and Ody W. Traynor that the latter should lease the mortgaged premises to the mortgagee, and give him the benefit of all crops raised thereon for two years ensuing; the proceeds of such crops to be applied to the payment of the debt secured by the mortgage. On November 22,1871, such a lease was executed, containing the agreed stipulations. Similar instruments were executed by the parties from time to time, so that all the crops raised on the mortgaged land down to the commencement of this action, and later, were subject to such disposition. Nearly one half of the proceeds of such crops were applied by Whitney, with the consent and solicitation of Ody W. Traynor, to the payment of a running account for merchandise purchased by him of Whitney, and to reimburse Whitney for money paid b}7 him to satisfy numerous demands of other creditors of Traynor. It is manifest that this diversion of the proceeds of the crops from the purpose originally agreed upon commenced as soon as any crops were received by Whitney (perhaps before), and was in pursuance of a mutual and continuing agreement between Whitney and Traynor, affecting all such proceeds. Hence there was no actual application of such proceeds to the payment of the mortgage
The court found that the whole value of the crops received by Whitney under these leases and agreements, down to April 22, 1878 (the date of the settlement before mentioned), was equal to or exceeded the amount then due upon the mortgage debt, and held that although Ody W. Traynor consented to a different application of the crops, and was bound thereby, yet Griswold could insist that, as to him, the whole of such proceeds should be applied in accordance with the stipulations of the leases. On this ground the lien of the mortgage was postponed to that of Gris-wold’s judgment. Griswold was a general creditor of Ody W. Traynor from the date of the securities until he recovered his judgment, in 1887. They seem to have had quite extensive dealings during all that time, or at least to 1885, but there was always a balance against Traynor of from $700 to $1,000 and more. At some times Griswold had security for Traynor’s debt, and at others little or none. He testified that at one time, in 1878, he was pretty well secured for such indebtedness. GrisiooWs judgment recovered in 1887 against Traynor was for $1,139.39.
For the purposes of this case, it may be assumed that, when an application of a payment by a debtor has once been made upon a particular debt, the parties thereto cannot recall the application and apply such payment to another purpose, to the injury of another creditor, even though such other is only a general creditor of the debtor. But we have been referred to no adjudicated case which holds that a general creditor can enforce specific performance of an executory agreement between his debtor and another creditor of the latter, for the application of future payments to a particular demand. We do not think the law
4. The circuit court found that certain transactions between Henry A. Whitney and Ody W. Traynor were fraudulent as against the creditors of the latter. It is not clear that this finding affected the judgment in respect either to the homestead or the priority of Griswold’s lien over that of the mortgage. It may, however, have influenced the judgment in these particulars, and hence a brief consideration of this finding will not be out of place.
At the time the first lease above mentioned was executed by Traynor to Whitney (November 22,1871), Traynor also executed to Whitney a note for $500, and a chattel mortgage on all his personal property on the farm to secure the note. This mortgage was filed in the proper office, and was continued in force another year by annexing thereto, November 22, 1871, the affidavit required by statute. December 4, 1873, Traynor executed another chattel mortgage to Whitney on all the personal property then on his farm, to secure the same note. A chattel mortgage was also executed by Traynor to Whitney, January 7, 1884, covering all his personal property, and purporting to secure a note for $510. There was no consideration for any of
In September, 1873, Henry A. Whitney obtained a tax deed of the 105 acres of the mortgaged land owned by Ody W. Traynor, with the consent of the latter, and during the next month Ody W. Traynor executed to Whitney a quitclaim deed of the same land. But, under the agreement between Whitney and Traynor with respect thereto, such deeds were not intended by them to interfere with their relations to each other as mortgagor and mortgagee of the land, and did not so interfere. The mortgage relation was kept alive by mutual agreement, under which the only effect the deeds could have was to create between them the l-elation of equitable mortgagor and mortgagee. Such change could not possibly affect the rights of Tray-nor's creditors.
The finding above mentioned is that such leases, chattel mortgages, tax deed, and quitclaim deed were executed and received by Whitney and Traynor, respectively, for the purpose of covering the property of Traynor, and to hinder, delay, cheat, and defraud his other creditors. There was no element of fraud in the leases or deeds. A mortgagee may lawfully stipulate for the possession of the mortgaged premises, or that the crops grown thereon shall be delivered to him and the proceeds applied to the mortgage debt. As already suggested, the tax deed and quitclaim deed could harm no one. What interest could it be to Griswold or any other creditor of Traynor whether Whitney or Traynor held the legal title to the mortgaged premises, so long as the relation of mortgagor and mortgagee, theretofore existing between them, continued? These deeds
The chattel mortgages were fraudulent, but there is no connection between them and the mortgage in suit. There is no competent proof that they had ever been suggested or thought of when the real-estate mortgage was executed and the agreement for the leases made. The creditors of Traynor could have successfully resisted them, but the right of the plaintiffs to enforce the lien of their mortgage cannot possibly be affected by them.
By the Court.— Those portions of the judgment which release the former homestead of Phillip Traynor from the lien of the mortgage in suit, and which postpone the lien of such mortgage to that of GriswoWs judgment, and which award costs to the latter against the plaintiffs, are reversed. The cause will be remanded to the circuit court for further proceedings according to law.