141 Wis. 501 | Wis. | 1910
The confusion of this case, from the multitudinous irregularities and errors of practice on the trial, in the preparation of the record for appeal, and in the printed case, are such that we have, most improperly, been driven to the necessity of examining, by consent of counsel, the original reporter’s minutes and a mass of exhibits supposed to have been admitted in evidence but in no wise embodied in the bill of exceptions'. The effect of such confusion is enhanced by the fact that the trial judge has failed of compliance with the requirement of see. 2863, Stats. (1898), that he state in his written decision the facts found by him and his conclusion of law thereon. This duty has been the subject of frequent comment, explanation, and definition by this court, the result of which is that a trial judge is required to declare his conclusion upon each of the controverted issues of fact and also his specific conclusions of law thereon from which the ultimate judgment results. We commend the following cases to the attention both of judges and of counsel who, in the sustainment of judgments which they secure, may be seriously prejudiced by the omission of such findings as the statute commands: Brown v. Griswold, 109 Wis. 275, 85 N. W. 363; Milwaukee Nat. Bank v. Gallum, 116 Wis. 74, 92 N. W. 567;
The controverted issues in this case were: (1) Whether the plaintiffs physically executed the deed upon which defendants rely; (2) whether, if so, the intention of the parties was that a complete release and transfer of the equity of redemption should take place, or whether the parties contemplated a continuance of the former situation, namely, that the property should still he held as security redeemable by the mortgagor; (3) whether, if intended as an absolute conveyance, it was (a) voluntary on the part of the mortgagor; (b) based on an adequate consideration; (c) untainted by fraud; and (d) with no advantage taken of the debtor’s necessities by driving a hard bargain; (4) whether the defendant Nellie Miner was an innocent purchaser without notice relying on the record title; (5) whether the defendants Shannon were such purchasers; and (6) whether the plaintiffs were estopped by certain eviction proceedings. On no one of these issues, except the first, are we informed by the findings of the judge’s conclusion of fact, nor which of such facts justified a conclusion of law supporting the judgment rendered. The so-called findings, after declaring the execution of two certain deeds, one of which was undisputed, and the other was. the deed from plaintiffs and Haller to Lybrand in 1899, declare only that “at the commencement of this action the plaintiffs nor either of them had any right, title, or interest in the lands described in the complaint.” This is of course not a finding of fact, but a conclusion of law from some other facts. Whether such absence of title resulted from the deed to Lybrand, from rights of one or other of the defendants as an innocent purchaser, or from some judgment estoppel against the plaintiffs,
We probably should not be able to say, as against a distinct finding that plaintiffs physically executed the deed, that any clear preponderance of evidence sufficient to overcome it appears. When, however, we come to consider the intention of the parties in making such a deed there is much very persuasive evidence in favor of the claim of the plaintiffs that the deed was not intended to presently terminate the relation of mortgagor and mortgagee. The plaintiffs all testified that only a mere contract was intended, and the only plaintiff having direct negotiation with the agent of Lybrand testifies that it was made merely to enhance his security and avoid the expenses of foreclosure and define his right to possession. When we turn to the testimony of that agent of Lybrand we find th.at, while he asserts that the plaintiffs fully understood that it was a deed, still that it was made to avoid expense of foreclosure proceedings, and that it was agreed at the time that no change in the possession should take jolaee till nearly a year later, at which time the grantors were to have an option to acquire or retain the property by paying a sum exactly equal to the debt and were to pay “interest” to the end of the year. There was also a promise of a lease after the first year had terminated at a rate of rental ascertained as the amount of the annual interest at seven per cent, on the sum so found
If, however, we assume the intention of the parties to have been a release of all equity of redemption, there arises the question whether the plan was voluntary with the debtor, or whether it was the result of pressure or coercion following from inability to presently pay, and the threatened probability of foreclosure proceedings, with consequent enhancement of the debt. It is disclosed by the testimony of Pier that the plan of conveyance or surrender of the land did not originate-with the plaintiffs or with Lybrand; that they had at all times been struggling to meet their payments of interest; that Pier-insistecl either on payment of all interest, including the arrears, or that they convey the property or submit to foreclosure, insisting to them that their conveyance would relieve-both parties from the expenses of foreclosure and be no detriment to them, because their equity, though perhaps of some value, would be eaten up by another year’s interest and expenses of foreclosure.
The rules of law governing the relations between mortgagor and mortgagee with reference to acquisition of mortgaged land by the latter have been long settled aiid were last announced by this court in Lynch v. Ryan, suprawhere it was said that in order to support such a transfer and terminate the pre-existing right of redemption by payment of the debt, “it must be clearly shown that the conveyance or release was voluntary on the part of the mortgagor, was based upon an adequate consideration, was untainted by fraud, and that no advantage was taken of the debtor’s necessities to drive a hard bargain. ... In doubtful cases the courts incline to hold that the mortgage relation still exists.” The reason of this rule is obvious. When one gives a lien upon his land to another as security for a debt, public policy does not permit him in advance to agree to any forfeiture of his right of redemption otherwise than in the manner prescribed by statute, namely, that of a judgment declaring the amount due and, after a year for redemption, directing the premises to be sold to raise the money due to pay such debt The creditor’s right is to his money, not to the land. /But, in common experience, the man reduced to the necessity of borrowing money upon mortgage security is often, if not commonly, in a situation where oppression is easy, and where a serious temptation is offered to the mortgage creditor to avail himself of the oppor
We are unable to find any evidence to establish estoppel against the plaintiffs in the case of Nellie Miner. ITer title to an undivided half of the land appears to have come by descent from J. W. Lybrand, so that her title could be no better than his. As to the other half, it came to her by conveyance from her brother, but there is no evidence as to whether such conveyance was based upon a valuable consideration or whether she even claims ignorance of the plaintiffs’ rights in the land. It does appear, however, that at the time of her deed the plaintiffs were in open and notorious possession of the premises. As to Shannon, there is also entire absence of •evidence as to the good faith of his purchase or as to- any valuable consideration; while it also appears that he was a neighbor living in the vicinity, from which is inferable his knowledge of the possession and occupation of the premises by the plaintiffs while it continued. True, it also appears that at the time of his deed they had been evicted by some process •claimed to be invalid. The circumstances of that eviction, which is claimed to have been under judicial process, are not at all shown by any of the evidence before us so that it can be determined whether there has been any adjudication sufficient to estop the plaintiffs from setting up their title.
However, we do not feci that it would be safe to l’ender a
By the Court.- — ’Judgment reversed and cause remanded for new trial. TTo costs will be allowed for printing case.