Becker v. Howard

• Decision Date: 07 January 1890
• Citation: 44 N.W. 755,75 Wis. 415
• Parties: BECKER v. HOWARD.
• Court: Wisconsin Supreme Court

75 Wis. 415

44 N.W. 755

BECKER

v.HOWARD.

Supreme Court of Wisconsin.

Jan. 7, 1890.

Appeal from circuit court, Douglas county.Hiram Hayes, John B. Brisbin, and W. F. Vilas, for appellant.

J. J. Egan, M. D. Munn, and Ross & Dwyer, for respondent.

TAYLOR, J.

This action was commenced by the appellant for the purpose of having a deed, executed by him on the 4th day of October, 1858, and which was duly recorded in the office of the register of deeds of Douglas county, in this state, on the 9th day of November, 1858, declared a mortgage, and to redeem said mortgage, and compel the defendant to render an account for the value of such of the lands as have been sold by the defendant since the execution of said deed. The deed was a warranty deed, containing the usual covenants, and conveyed to the respondent 1,055 acres of land in said county. The consideration named in the deed is $1,200. The defendant denied that said deed was given to secure a debt due to him from the appellant,or for money loaned by him to the appellant, and insisted that he purchased the said lands from the appellant at the time of the execution of such deed for the sum of $1,200, then paid by him to the appellant. The case was tried by the court without a jury, and the learned circuit judge found in favor of the defendant, and dismissed the plaintiff's complaint, and from the judgment of the court dismissing such complaint the plaintiff appeals to this court. The learned circuit judge made and filed the following findings of fact, among others, viz.:

“ First. On the 4th day of October, 1858, the plaintiff, under the pressure of extreme financial or business necessity, applied to the defendant for a loan of $1,200, offering as security therefor his personal obligation secured by a mortgage on the lands mentioned in the complaint, amounting to about 1,055 acres, of which he was the owner in fee.

Second. The defendant refused to grant the loan so asked for, and refused to enter into any contract which, in his view, would involve the loan of the money, and taking such security therefor.

Third. It was finally, however, on that day, agreed by parol between the parties, that the plaintiff should sell and convey by absolute deed to the defendant the said lands, for the price of $1,200, to be paid therefor by the defendant; and it was at the same time further and in like manner agreed between them that the defendant should reconvey the same lands to the plaintiff, at any time that he should be required to do so by the plaintiff, upon the payment of the amount of such purchase money, $1,200, with interest from that day at the rate of five per cent. a month.”

“ Sixth. There was no understanding between the parties that the plaintiff incurred any indebtedness to the defendant on account of the said sum of money so paid to the plaintiff, and no evidence of indebtedness was, on account thereof, given by the plaintiff to the defendant, and no promise, by parol or otherwise, to repay the said sum, was made by the plaintiff to the defendant, in any sense of a contract to that effect; the plaintiff's testimony, that he was to repay the same, being construed by me as indicating that he declared his intention to avail himself of the option so given him to repurchase, and not as importing a promise to repay, accepted as such by the defendant.”

“ Ninth. The said lands were all wild and uncultivated and unoccupied lands, and have so remained, except that some of the parcels which were sold by the defendant have, within about four years last past, come into use and occupation as town lot property in West Superior, a place begun and developed within that time.

Tenth. At the time of said transaction between said parties, the value of said lands, measured by any market price thereof, was not susceptive of accurate estimation, for the reason that an extraordinary financial depression, general throughout the country, affected very disastrously all interests at Superior, near which these lands were situated, and particularly town lot speculation, and town lot prospects, with reference to which almost exclusively these lands had commercial value; and though, with reference to the uncertain prospects of an indefinite future, these lands were estimated, by different persons, as competent as any to form a judgment, to be worth from $3,000 to about $12,000, altogether, yet for reasons above stated they were not practically salable for even the lesser of said sums, and there is no ground for holding that they could have been sold to any one for a price greater than the sum of $1,200.

Eleventh. The defendant, at different times between 1872 and 1881, inclusive, sold and conveyed, in fee, parcels of said land, amounting altogether to four hundred and fifteen acres, receiving therefor $3,500. Defendant, ever since the execution of said deed by the plaintiff, has paid the taxes on all such lands, except taxes on parcels of land so sold by the defendant, accruing since the sale of the same, respectively. The amount of taxes so paid does not appear.”

“ Thirteenth. From the time said deed was executed by plaintiff, in 1858, until the spring of 1887, though for some years of that period both parties lived in Superior, (the plaintiff living in St. Paul, after living in Superior,) there was no intimation made by either party to the other that the conveyance of said land by the plaintiff, as aforesaid, was intended to operate otherwise than as an absolute and indefeasible transfer of the title to said lands in fee, or that the delivery of said sum of $1,200 to the plaintiff by the defendant was other than a payment of the purchase price of said lands.

Fourteenth. There was no very material increase in the market value of said lands until three or four years before the commencement of this action, and the enormous increase in value which some of them, being of those defendant has sold, as aforesaid, have attained, did not take place until 1886 or 1887; and the plaintiff had many years before--I should say as early as 1868--virtually abandoned the idea of repurchasing or redeeming the said lands from the defendant, and had reason to know that the defendant so understood.

Fifteenth. It is apparent that the plaintiff was stimulated to set up a claim for such lands by an extraordinary increase in the value of certain parcels of them, arising from town-site settlement improvements and speculations at West Superior, in 1886 and 1887, and that but for such increase, or some great increase in the value of said lands, the plaintiff would not make any claims on the defendant for the same.

Though the facts as above stated accord with my impression as derived from the whole evidence, I do not feel sure that the case made by the evidence is not one which should be disposed of (without reference to the question raised as to a loan of money by the defendant, or a repurchase of the land by the plaintiff) simply by finding that the plaintiff's claim, in view of the conflict of testimony, is not sustained by proof of that clear and convincing character which is requisite to turn an absolute deed into a mortgage security.”

Also the following conclusions of law:

“ First. The said transaction, in which the said lands were so conveyed by the plaintiff to the defendant, and the said sum of $1,200 was so paid by the defendant to the plaintiff, amounted to an absolute conveyance of the land on one hand, and the payment of the agreed price therefor on the other hand, and was not in the nature of a loan of said money, and of a mortgage of said lands to secure its repayment.”

“ Third. If the statute of limitation does not apply to the case, still I would deem the plaintiff's claim stale in equity, and barred by his laches, long silence, and delay in bringing his action.

Fourth. The defendant is entitled to a judgment of dismissal of the complaint, with costs against the plaintiff.”

The appellant excepted to the 2d, 3d, 4th, 5th, 6th, 7th, 8th, 10th, 12th, 14th, and 15th findings of fact, and the 1st, 2d, and 3d conclusions of law, and also filed a general exception that, upon the whole evidence, the plaintiff is entitled to the relief prayed for.

The defendant excepted to that part of the third finding of fact which reads as follows. “And it was at the same time further and in like manner agreed between them that the defendant should reconvey said lands to the plaintiff at any time he should be required to do so by the plaintiff, upon the payment of the amount of such purchase money, $1,200, with interest from that day at the rate of five per cent. a month.” And also to that part of the fourth finding of fact which reads as follows: “That the plaintiff executed the deed to the defendant in accordance with such agreement,” (meaning the agreement mentioned in the third finding of fact.)

Upon the whole evidence in the case, and after having carefully considered the able and exhaustive arguments submitted on the part of the learned counsel for ...