Conner v. Welch

• Citation: 8 N.W. 260,51 Wis. 431
• Parties: CONNER v. WELCH AND ANOTHER.
• Decision Date: 02 March 1881
• Court: United States State Supreme Court of Wisconsin

51 Wis. 431

8 N.W. 260

CONNER

v.WELCH AND ANOTHER.

Supreme Court of Wisconsin.

Filed March 2, 1881.

Appeal from circuit court, Dane county.

The case established by the pleadings and evidence is correctly stated in the brief of counsel for the plaintiff, as follows: “This action was brought to foreclose four certain mortgages made by Martin Osborne and wife upon 80 acres of land in Dane county, three of which mortgages had been satisfied of record before the commencement of the action. The facts are that on November 11, 1871, Martin Osborne was seized in fee of the W. 1/2 of N. W. 1/4 of section 25, town 8, range 9, Dane county. November 11, 1871, Osborne and wife gave a mortgage thereon to John W. Allen for $800 and interest. This is still in force as a first mortgage on the property, and is not one of the four mortgages for the foreclosure of which the action was brought. It confers a right of property prior to the rights of all parties hereto, and further reference to it in the case is unnecessary. November 23, 1871, Osborne and wife gave a mortgage thereon to Patrick Duffy for $200 and interest. This mortgage bears date prior to the Allen mortgage, but was executed later, and in terms made subject thereto. October 1, 1875, Osborne and wife gave another mortgage thereon to Patrick Duffy for $250 and interest. December 2, 1876, Osborne and wife gave a mortgage thereon to Elizabeth Duffy for $135 and interest. February 21, 1878, Osborne and wife gave a mortgage thereon to Michael C. Conner, the plaintiff, for $229 and interest, which mortgage has never been satisfied of record. March 1, 1878, the defendant Christian R. Stein caused judgment to be entered against Martin Osborne in the circuit court for Dane county upon a judgment note, with warrant of attorney, by his attorneys, Welch & Botkin, a law firm of which the defendant William Welch was a member. March 2, 1878, the defendant Stein assigned said judgment to said William Welch. March 4, 1878, the said mortgages, numbers two, three, and four, for $200, $250, and $135, were assigned to the defendant Stein. March 5, 1878, the defendant Stein, by his attorneys, the said Welch & Botkin, brought suit to foreclose the said mortgages, numbers two and three, for $200 and $250, making parties defendant thereto Osborne and wife, the mortgagors, and Conner, the plaintiff herein, holding the subsequent mortgage, number five, above mentioned, but not making a party defendant the said Welch, holding by assignment the said judgment number six. March 8, 1878, Osborne and wife, by deed of quitclaim, conveyed said premises to the plaintiff, Conner, who, at the time, had an actual knowledge of the Stein judgment and its assignment to Welch. April 9, 1878, at the office of Welch & Botkin, in the presence of Botkin, the plaintiff, Conner, paid to the defendant Stein the amount, principal and interest, of the mortgages in suit, (Nos. 2 and 3,) together with about $115, costs of suit. At the time of payment he was still without knowledge of the Stein judgment. Neither Stein nor Botkin spoke of it. Botkin, when asked if he had told Conner of the existence of the Stein judgment, testified: ‘I do not think I did. He (Conner) paid the money, and then said that he wanted the mortgages satisfied, and asked Mr. Stein to come right up with him and satisfy the mortgages, at the register of deed's office, and get done with it; and he and Mr. Stein went out of the office for that purpose. It was at Conner's request. Not a word was said by me or Stein in regard to satisfying. There was not a syllable or whisper in regard to it.’ The two mortgages were then satisfied by Stein. April 29, 1878, the plaintiff, Conner, paid Stein the amount, principal and interest, of the mortgage for $135, number four, which, with the accompanying note, was delivered to him. Thereupon, at plaintiff's instance and request, Stein went to the register's office, accompanied by plaintiff, and satisfied the mortgage; Stein knowing, and the plaintiff not knowing, of the judgment. About December, 1878, the plaintiff first learned of the existence of the judgment from the officer having an execution thereon against this property.” The complaint prays that the discharges of the three Duffy mortgages be cancelled, and for the usual judgment of foreclosure and sale in respect to those mortgages, and the mortgage for $229 to the plaintiff, dated February 21, 1878.

It is claimed in the complaint that 40 acres of the mortgaged land was the homestead of Osborne, and an injunction was prayed against the sale of such 40 acres, on execution issued upon Stein's judgment. As to the agreement between the plaintiff and Osborne, pursuant to which the latter conveyed to the plaintiff the land mortgaged, the plaintiff testified as follows: “I bought the place of Osborne. I was to pay the mortgages. I did not give him any money besides the mortgages. * * * I gave him an account I held against him, more or less. * * * He had no money, and I paid for the making out of these papers. Forget how much that was. That is all I paid for his deed to me, except that I released him from his liability on the note of $229. Think it was agreed that I should let Osborne have his note and mortgage. Have no further claim on him or his land for that.” The witness testified later that he understood he took the property in satisfaction of his claims, but that it was no part of the consideration of the deed; and, further, to the question, “Didn't you regard the giving to you by Osborne of the quitclaim deed as, between you and Osborne, a settlement of your note and mortgage against him for $229?” the plaintiff answered: “I presume so, but that was omitted in putting the amount in the deed.” This is the substance of all the evidence on the subject.

The court found--“ First, that all the facts stated in the complaint are true, except that no part of the mortgaged premises was the homestead of Osborne when Stein recovered his judgment, and that Stein is not the owner of such judgment; second, that the defendant Welch purchased said judgment from the defendant Stein, and took the assignment thereof absolutely, for full value, and without notice, fraud, or collusion, and that he paid therefor by crediting the said Stein on the account of the firm of Welch & Botkin, of which the defendant Welch was then and still is a member, with the face amount thereof, towards the payment for legal services theretofore rendered by the said Welch & Botkin for the said Stein, and that, as between the said Welch and the said Botkin, it was agreed that the amount of said judgment should be received by the said Welch on his individual account; third, that Mr. Botkin, the law partner of the said defendant Welch, transacted the business in the foreclosure suits set out in said complaint, and that said Welch had no knowledge of the details of said foreclosure, and of the satisfaction of the mortgages as set out in said complaint; fourth, that the cancellation of the mortgages as set out in said complaint was founded upon a mistake upon the part of the plaintiff. That mistake was the supposition that the several mortgages of record, including his own, to the amount in all of the full value of the premises, were the only liens prior to his deed from said Osborne.”

As conclusions of law, the court found that the mortgage for $229, executed by Osborne to the plaintiff, is...