Broadbent v. Hutter

• Decision Date: 23 May 1916
• Citation: 163 Wis. 380,157 N.W. 1095
• Parties: BROADBENT v. HUTTER.
• Court: Wisconsin Supreme Court

163 Wis. 380

157 N.W. 1095

BROADBENT

v.HUTTER.

Supreme Court of Wisconsin.

May 23, 1916.

Appeal from Circuit Court, Sauk County; James O'Neill, Judge.

Action by Fred R. Broadbent against William H. Hutter. From a judgment for defendant, plaintiff appeals. Affirmed.

The plaintiff sold real estate situate in Grant county, Wis., to E. H. Hutter, brother of defendant, William H. Hutter. E. H. Hutter, in payment of part of the purchase price, made, executed, and delivered to the plaintiff a note for $1,280 and a mortgage upon the real estate sold to him by plaintiff to secure said note. At the time E. H. Hutter executed this note and mortgage there was outstanding a $2,500 note and mortgage which was given by plaintiff while he owned the property. Subsequent to the execution of the mortgage by E. H. Hutter to the plaintiff said E. H. Hutter transferred the real estate to his brother, William H. Hutter, defendant herein. After the conveyance by E. H. Hutter to defendant the holder of the first mortgage for $2,500 foreclosed, the property was sold, and a deficiency judgment rendered in favor of the mortgagee against the plaintiff for $1,026, and interest.

The present action was brought to enforce liability against the defendant for the note of $1,280, and interest, secured by mortgage, which the plaintiff claims the defendant assumed under the deed from E. H. Hutter to defendant, and also to enforce liability against the defendant for $1,026, and interest, deficiency judgment, above referred to. The defense made by defendant was that the deed from E. H. Hutter was, in fact, a mortgage, and that there was no consideration for the agreement on the part of the defendant to assume the outstanding notes and mortgages.

At the close of the evidence a motion was made to amend the answer so as to set up the facts necessary to show a right to reform the deed from E. H. Hutter to defendant so as to eliminate the clause therein providing for the assumption of the previous incumbrances so as to conform to the proofs in the case. The court below found: That E. H. Hutter on and prior to November 10, 1910, was the owner of the real estate in question. That said E. H. Hutter made and delivered to the plaintiff the note and mortgage referred to in the complaint. That on March 4, 1911, said E. H. Hutter and wife executed an instrument in form a warranty deed purporting to convey said real estate to defendant, which deed contained the following clause:

“As a part of the above consideration the grantee assumes and agrees to pay a certain mortgage on said described premises in favor of A. J. Garner dated April 4th, 1908 for $2,500; also a mortgage for $1,280 to Fred Broadbent dated November 10, 1910.”

That the mortgage in favor of said Garner was foreclosed and a deficiency judgment of $1,026 rendered on said foreclosure. That the defendant at the request of E. H. Hutter has conveyed his interest in said premises. That plaintiff has never been paid any part of said $1,280 mortgage, except interest for one year, and there is due him thereon $1,280, and interest. That said writing, in form a deed, executed by said E. H. Hutter and wife to defendant, was intended by the grantors to be security to secure the defendant for indorsing a note of $200 for E. H. Hutter. That said deed was, in fact, a mortgage, and defendant was not a purchaser of said real estate, and received and held said deed only as security. That E. H. Hutter is insolvent and has neglected to pay said note. That defendant did not request his brother to execute said deed or give him any security for said indorsement, but E. H. Hutter executed such deed, had it recorded, and sent it to defendant in an envelope. The defendant, not being interested in his brother's affairs, kept the deed in an envelope without opening the same or examining the contents of the deed. Later defendant conveyed said premises to a party who purchased the same from E. H. Hutter. That defendant had no knowledge of the assumption clause in said deed until an action was commenced to foreclose the Garner mortgage and the complaint served upon him. That defendant never entered into any contract with his brother to assume or pay said mortgages, nor was there any consideration for any such contract or agreement; the clause in said deed was inserted by accident and mistake and without any intention on the part of defendant to accept said deed as security with any such agreement to assume the payment of said mortgages. That, as said deed was executed as security only, defend...