Bullamore v. Baker

• Decision Date: 22 June 1936
• Citation: 222 Wis. 418,268 N.W. 214
• Parties: BULLAMORE ET AL. v. BAKER ET AL.
• Court: Wisconsin Supreme Court

222 Wis. 418

268 N.W. 214

BULLAMORE ET AL.

v.BAKER ET AL.^a1

Supreme Court of Wisconsin.

June 22, 1936.

Appeal from part of judgment of the Circuit Court for Kenosha County; S. E. Smalley, Judge.

Affirmed.

Action by plaintiffs to foreclose a mortgage. The defendant Baker, by cross-complaint, seeks to establish rights under a vendor's lien. Judgment was in favor of plaintiffs.

The issues were referred to Richard P. Cavanagh, Esq., as referee, to hear, try, and determine. The referee found that there was due to Baker the sum of $10,092.80 together with interest and costs; the existence of facts on which to base a right under a vendor's lien, and that such lien had not been waived. When the referee's report came before the circuit court upon a motion to confirm, the court modified the findings of the referee in certain particulars. It held that the finding that Baker was a true and lawful owner of the premises was not supported by the evidence; that, in fact, he was a mortgagee; that by his acts he had induced the plaintiff Bullamore to loan money to defendant Petra Dahl on the premises so deeded by Baker, and that if Baker had been a vendor, he would not be entitled to the benefits of a lien superior to plaintiffs, for the unpaid purchase price, and directed judgment accordingly.

Baker was the attorney for Dahl in a number of matters. His compensation in certain instances was fixed on a contingent fee basis. He advanced considerable sums of money in compromising claims of Dahl's creditors, and, because Dahl was unable to pay these advances, Baker took title to the lots described as 11 and 12. Thereafter, there was deeded to the city of Kenosha a portion of the premises for which Baker received $5,300. He received some rent, and a portion of a sum raised by giving a mortgage upon the premises, the balance being used to pay off another mortgage. He deeded a portion of Lot 11, without consideration, to Mrs. Dahl. At times Dahl made changes in the buildings upon the premises, including the portion deeded to Mrs. Dahl, without consulting Baker, and without interference on Baker's part. The proposition of putting a theater building upon the portion to which title still remained in Baker was made by Dahl, who had succeeded in interesting Bullamore to the extent that he was willing to advance money for that purpose to Dahl. There were two mortgages upon the premises, and the title of record was in Baker at this time. The parties met, and Bullamore raised $4,000, which was paid to Baker, and at that time Baker gave a warranty deed of the premises still standing in his name to Mrs. Dahl, with the understanding that he was to be paid a balance due him out of a bond issue which the parties expected to negotiate upon the premises. Dahl so managed the construction work that, with the money advanced by Bullamore and the liens which were permitted to accumulate against the property, there intervened in the neighborhood of $100,000 of liens between the $60,000 advanced by Bullamore to Dahl and the possibility of a bond issue, so that the attempt by Dahl and Bullamore to secure a bond issue failed. The liens, having attached as of the beginning of the work, were purchased by the plaintiffs.

The judgment entered provided that if after payment of sheriff's fees, expenses, and the amounts due the plaintiffs, there be any surplus then remaining, that such surplus, to the extent of $13,372.92 with interest from July 11, 1932, be paid to the defendant Baker, “or so much thereof as such surplus funds will pay thereof.” The defendants Baker appeal from that part of the judgment which determined the issues raised by the cross-complaint, and which adjudged that Robert V. Baker has a valid lien on certain portions of the premises described in the complaint in the sum of $13,372.92, for services and money advanced, but that said lien is junior to the lien of the plaintiffs.

Baker, Juliani & Baker, of Kenosha (Harold M. Wilkie, of Madison, of counsel), for appellants.

Hammond & Jones, of Kenosha, for respondents.

FAIRCHILD, Justice.

The appellant, Robert V. Baker, for some years prior to the transaction here involved, was the attorney for Einar Dahl, the husband of Petra Dahl. Dahl became involved in financial difficulties. He had a one-third interest in lots 11 and 12, described in the complaint. This interest was transferred to appellant Baker, who also acquired the interest of other owners. The legal title to the lots was acquired by appellant in 1923, and the record shows title to all of said premises in appellant until 1925. Different portions, at different times, were conveyed by appellant to Mrs. Dahl. There is no question but that appellant has money due him from Dahl.

Appellant's first proposition, presented by this record, is that he acquired the property in 1923 as a bona fide purchaser. The respondent insists that the arrangement under which appellant took title was made for the purpose of giving security for the debt owed appellant by Einar Dahl. The referee concluded that appellant was a bona fide purchaser; the circuit court, upon reviewing the referee's report, concluded that findings of fact upon which that conclusion was based were against the great weight and clear preponderance of the evidence. There is much in the record to sustain the trial court's conclusion on this matter. After...