Boyle v. Lybrand

• Decision Date: 28 January 1902
• Citation: 88 N.W. 904,113 Wis. 79
• Parties: BOYLE v. LYBRAND ET AL.
• Court: Wisconsin Supreme Court

113 Wis. 79

88 N.W. 904

BOYLE

v.LYBRAND ET AL.

Supreme Court of Wisconsin.

Jan. 28, 1902.

Appeal from circuit court, Richland county; Geo. Clementson, Judge.

Action by John Boyle against R. C. Lybrand, executor, and another. From a judgment in favor of plaintiff, defendant Lybrand appeals. Reversed.

This is a statutory action to quiet title brought by the plaintiff, claiming to own a mortgage upon the real estate, for the purpose of obtaining a judgment declaring that the defendant's testator, one J. W. Lybrand, now deceased, has no interest in said mortgage, and requiring said Lybrand to surrender and deliver up to the plaintiff the note which said mortgage was given to secure. The facts were not in dispute, and may be briefly stated as follows: January 2, 1895, John E. Wallace and Edward T. Wallace, sons of the defendant Patrick Wallace, executed and delivered to said Patrick Wallace and his wife, Johanna Wallace, a mortgage upon certain farm lands in Richland county to secure the payment of two notes owing by the said John and Edward,--one being in the sum of $1,000, drawn to Patrick Wallace or order, payable eight years after date, with interest after due, and the other for the sum of $500, to Johanna Wallace, payable ten years after date, and without interest. Said mortgage was duly recorded in the registry of deeds for Richland county January 3, 1895. On November 30, 1896, the plaintiff, who is a nephew of the defendant Patrick Wallace, loaned the said Patrick Wallace $450, and received his promissory note therefor; and Patrick Wallace at the same time indorsed upon the said mortgage an assignment of the sum, together with the $1,000 note, as collateral security of the payment of the note to Boyle. This assignment was signed by but one witness, and was not acknowledged. Wallace thereupon delivered the mortgage, with the assignment, to the plaintiff, and told the plaintiff that he did not have the $1,000 note with him, but that he would send it to the plaintiff, who lived in Madison; and the plaintiff, relying upon this assurance, returned to Madison, taking the mortgage with him. Afterwards, on the 13th of October, 1897, the defendant Patrick Wallace went to Madison and applied to the plaintiff for a further loan upon the security, and a further assignment to him of the note and mortgage; and the plaintiff then loaned Wallace $200 additional, and took his note therefor, and Wallace executed a further assignment of the said mortgage and note upon the back of the mortgage as collateral for the repayment of the said $200, which assignment was signed by two witnesses, but not acknowledged. When Wallace applied to the plaintiff for this last loan, he represented to him that he had the $1,000 note with him; but, after getting the money and executing the assignment, he searched his pockets, and claimed he could not find the note, and that he had accidentally left it at home, and promised that he would send it at once. Neither of the assignments was received in the registry of deeds of Richland county until the 2d day of July, 1898. Meantime, and on the 18th day of December, 1897, Wallace went to J. W. Lybrand, produced the note, and offered to sell the same to him, and told him that the mortgage itself had been lost; and Lybrand, after having examined the record of the mortgage in the register's office,...