Williams v. Jones, 175 Wis. 380

175 Wis. 380 | Wis. | 1921

Siebecker, C. J.

It is claimed by the plaintiffs that this note and mortgage given to the plaintiffs and Arthur Williams, being joint in form, must therefore be held as creating a joint tenancy, and that the facts and circumstances of the transaction resulting in their execution and delivery cannot be considered nor received in evidence as showing that the note and mortgage were, intended to, and did in fact, create a tenancy in common between the plaintiffs and Arthur Williams. This claim of the plaintiffs is based on the statutes (gee. 2068 and 2069).

“Sec. 2068. All grants and devises of land made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy.

“Sec. 2069. The preceding section shall not apply to mortgages, nor to devises or grants made in trust, or made to executors,'or to husband and wife.”

It is urged that the common-law rule to the effect that written instruments cannot be contradicted, varied, or modified by parol evidence applies and governs in this case, and hence the facts and circumstances of the transaction resulting in the making, execution, and delivery of these written instruments cannot be considered in interpreting them and in determining the nature and kind of interest the plaintiffs and Arthur Williams had in them, and that, since they are in fact joint in form, under the statutes above quoted it must be held that the plaintiffs and Arthur Williams owned the note and mortgage as joint tenants, and upon the death of Arthur Williams the plaintiffs became the joint owners thereof by right of survivorship. It is also contended that under the decisions of this court, since the covenants of these instruments are joint in form, the facts and circumstances cannot be inquired into to interpret them and that they must be held to. create a joint tenancy. The following cases cited to our attention are much relied on by the parties to. sustain their respective claims: Farr v. Trustees, etc. 83 Wis. 446, 53 N. W. 738; Fiedler v. Howard, 99 Wis. 388, 75 N. W. 163; Church v. Nash, 163 Wis. 424, 158 N. W. 89; Dupont v. Jonet, 165 Wis. 554, 162 N. W. 664; Farwell v. Warren, 76 Wis. 527, 45 N. W. 217.

An examination of these cases discloses that this court has not declared that the facts and circumstances of the transactions involved in the making and execution of the written instruments respectively involved in each of these cases cannot be taken into consideration in interpreting the instruments. But it does appear in each of these casés'that the facts and circumstances involved in the transactions that led to the execution of the respective writings were brought to the attention of the court and that they were taken into consideration in the decisions. An examination of the cases of Farr v. Trustees, etc., Fiedler v. Howard, Church v. Nash, and Dupont v. Jonet shows that the joint covenants there involved, when interpreted in the light of the subject matter upon which they operated, with reference to the nature of the transactions between the parties, were intended to be joint covenants as held by the court. In the case of Farwell v. Warren, 76 Wis. 527, 45 N. W. 217, where a chattel mortgage was given, joint in form, to secure the separate indebtedness of the mortgagor to each mortgagee, it was held that the mortgagees took as tenants- in common of the property, each having an undivided interest in the property to the amount of his claim. It was there urged upon the court that, since the mortgage was in form joint, the mortgagees had a joint interest therein; but the court held that although the form of the mortgage was joint it was clear from the whole mortgage that the mortgagees owned it in common and that each mortgagee had an undivided interest in proportion to his respective debt. To this proposition the court cites a number of cases on page 535 of the opinion written for the court by Mr. Justice Taylor. Among the cases thus cited by the court is the case of Burnett v. Pratt, 22 Pick. 556. An examination of this case discloses that it involved a consideration of the questions presented on this appeal. The Massachusetts statutes, which are in substance like secs. 2068 and 2069 of our statutes, were involved in the decision. Since Burnett v. Pratt was approved and followed in Farwell v. Warren, 76 Wis. 527, 45 N. W. 217, and the principles there enunciated dealt with rights of parties like those involved in the instant case, we deem it proper to refer, to the reasons and grounds therein stated as declaratory of doctrines which we deem applicable to this case. It is there declared:

“A covenant with two or more persons constitutes a joint obligation; and a conveyance in fee or in mortgage to several, at common law, creates a joint tenancy. But covenants are to be construed with reference to the subject matter upon which they are to operate, and where the interests of the covenantees are several, the covenant, though in form joint, shall be construed to be several. . . .

“Every written agreement should be construed with reference to the nature of the transaction between the parties and to the objects which they appear to have in view. ... If a mortgage be given to secure a joint debt, it shall be so construed as to create a joint estate, notwithstanding the provisions of our statute. . . . But if a mortgage be given to two or more persons to secure their several debts, the obvious purpose of,the parties must be to give to each security for his particular debt.”

This doctrine as quoted was sustained in the coihmon law, as pointed out in the Burnett Case. In the recent case of Park v. Parker, 216 Mass. 405, 103. N. E. 936, the court re-examined the subject and the doctrine of the Burnett Case is adhered to. We consider that the observations' of the Massachusetts court are pertinent and applicable in interpreting instruments within the provisions of sees. 2068- and' 2069; Stats. It is considered that the circuit court properly held that a mortgage given under the facts and circumstances alleged in the answer makes' it proper to’ consider such facts and circumstances to show the' intent of the parties.' The statutes leave open to'inquiry in each particular case what the intent of'the parties is, and the rights of the parties are to be governed by the transactions involved'and the nature of the subject matter upon which they operate.

It must be held that the circuit court properly overruled plaintiffs’ demurrer to defendants’ answer, and correctly held reformation of the mortgage is not necessary, and hence the demurrer to the counterclaim should be sustained.

By the Court. — The order appealed from is affirmed.