Bergevin v. Bergevin

• Decision Date: 31 January 1919
• Parties: BERGEVIN v. BERGEVIN ET AL.
• Court: Wisconsin Supreme Court

168 Wis. 466

170 N.W. 820

BERGEVIN

v.BERGEVIN ET AL.

Supreme Court of Wisconsin.

Jan. Term, 1919.

Appeal from Circuit Court, Chippewa County; James Wickham, Judge.

Action to foreclose a mortgage by Nels Bergevin, an insane person, by W. D. Cameron, his guardian, against Annie Bergevin and another. From a judgment of foreclosure, the named defendant appeals. Reversed and remanded, with directions.

On October 10, 1911, the defendant herein, Annie Bergevin, commenced in the same circuit court an action for divorce against her then and now husband, the plaintiff herein, Nels Bergevin. In the complaint she charged her husband with cruel and inhuman conduct and excessive drinking. The usual application was made and notice thereof properly given, for alimony and suit money, but such motion was never heard by the court, and no further proceedings were had in the divorce action. Title to the farm upon which the parties had lived was then in the husband, and he also owned some personal property. She had no separate property.

After the husband was in default in serving an answer, and on November 14, 1911, an agreement was made between the parties after conferences with their respective attorneys. Under such agreement or understanding (it being uncertain from the testimony whether such agreement was reduced to writing) the husband deeded the farm to the wife subject to then existing mortgages, and gave her a bill of sale for the personal property. She paid him $200 in cash, and executed two notes for $400 each, secured by a mortgage on the property so conveyed, which mortgage he also signed; the notes being payable to the husband's then attorney, also named as mortgagee. That attorney subsequently assigned the notes and mortgage to the husband. Immediately upon the completion of the transaction the husband left that vicinity, going to Canada, Chicago, and elsewhere, and never afterward living with her or doing anything toward her support or that of the five children who remained with her, living on the farm. He was subsequently adjudged insane, a guardian appointed for him, and this action commenced to foreclose the mortgage upon default in the payment of principal and interest on the two notes aforesaid.

It was alleged by way of defense that the notes and mortgages were executed and delivered pursuant to agreement, and with the understanding that the parties thereto were thereafter to live separate and apart, and with the further provision that a decree of divorce should be obtained dissolving their marriage ties.

There was no substantial dispute about this transaction. It appeared that the parties had had former troubles, and one or both had previously consulted an attorney concerning them.

On the trial herein the husband testified that, owing to the trouble that he and his wife had, he made up his mind he would not stay any longer. She was going to give him a divorce, and he was going to give her the farm, and she was going to allow him $1,000; that he never intended to live with her after that; that he expected to get a divorce and his attorney agreed to get it.

The wife testified that she and he simply agreed to live apart. He was to give her a divorce. That was the only consideration for the mortgage and notes.

The then attorney for the wife testified that all the property interests were to be finally settled between them by this agreement; that it was to be final when the divorce was granted; that after the husband left there seemed to have been a report that he was dead, and no further proceedings in the divorce action were taken, and that later on it was ascertained that the husband had become insane. His understanding of the agreement was that the husband was not going to fight the divorce action, although it was not so said in so many words.

The husband's attorney testified that his remembrance was that there was no agreement about the getting of the divorce; that the mortgage was made to him because the parties were husband and wife, and the husband's signature was necessary on the real estate mortgage; that the husband expected that the wife would get a divorce, but that he did not intend to appear or defend the action; that there was not any express agreement that she would prosecute a divorce action; that they were separated, and had separated, and that the husband was going away for good; that the husband said he was going away, and if he could get that much he agreed he would go away and be satisfied with a division of the property, and did not seem...