Bush v. Maxwell

• Decision Date: 24 February 1891
• Citation: 79 Wis. 114,48 N.W. 250
• Parties: BUSH v. MAXWELL.
• Court: Wisconsin Supreme Court

79 Wis. 114

48 N.W. 250

BUSH

v.MAXWELL.

Supreme Court of Wisconsin.

Feb. 24, 1891.

Appeal from circuit court, Columbia county; R. G. SIEBECKER, Judge.J. J. Sutton and I. C. Sloan, for appellant.

J. H. Rogers, for respondent.

TAYLOR, J.

This action was brought by the appellant to recover from the respondent the amount of money paid to him by the appellant upon a certain note and mortgage claimed to be owned by the respondent, and which was claimed by him to be a lien upon certain real estate owned by the appellant. The material facts are the following: In 1881 John E. Bush was the owner of about 80 acres of land, described in the complaint; and on the 17th day of March, 1881, he gave his note for $600 to Emeline Maxwell, the mother of the respondent, and at the same time executed his mortgage upon said land to said Emeline to secure the payment of said note, with the interest thereon. The mortgage was duly recorded in the register's office, February 10, 1887. The evidence clearly establishes the fact that such mortgage was given for the sole use and benefit of the defendant in this action. After the execution, delivery, and recording of said mortgage, and on the 3d day of November, 1888, the said John E. Bush conveyed said land to Darius H. Bush, the plaintiff in this action, by a warranty deed duly executed and delivered; and on or about March 28, 1889, the plaintiff conveyed said lands, by his deeds duly executed and delivered, a part to one Darius H. Bush, Sr., and a part to one Ellen Buckly. Before the deeds to Bush, Sr., and Ellen Buckly were delivered, the plaintiff knew of the existence of said note and mortgage given by said John E. Bush to the said Emeline Maxwell, and he knew that the same was given for the sole use and benefit of the defendant in this action; and, in order to satisfy this defendant for his said claim, a part of the money due him from the purchase of a part of said land conveyed to said Darius H. Bush, Sr., was, with his consent, paid to the defendant to the amount of $510, and thereupon the defendant released said mortgage as to the property conveyed to said Bush, Sr.; and it was also then agreed between the parties that said mortgage was to remain a lien upon the lands conveyed to said Ellen Buckly for the sum of $390, and the plaintiff's deed to said Ellen Buckly was made subject to said mortgage for the said sum of $390, and the balance of the purchase money for both tracts was paid to and received by the said plaintiff from said purchasers in full satisfaction for the purchase money of said lands. The claim made by the plaintiff in his complaint is that said sums of $510 and $390 were obtained from the said plaintiff by false and fraudulent representations made by the defendant to the plaintiff at the time he allowed the same to be paid to him from the purchase money due him from the persons to whom he had sold said lands. The following are the allegations of fraud as set forth in the plaintiff's complaint, viz.: “That on or about March 28, 1889, the plaintiff was selling said land, and then first learned of the mortgage held by the defendant; that the said defendant then falsely and fraudulently claimed to the plaintiff that he had a valid mortgage on said land, and claimed to be the owner thereof, and to settle the said claim and obtain a release of a portion of said land covered by said mortgage the plaintiff paid the defendant the sum of $510, which was wholly lost by the plaintiff, and also at the same time sold the balance of said land for $310 less, on account of said mortgage, and thereby he lost the said sum of $900 through the false and fraudulent claim and pretense of the defendant.” The complaint then goes on to set out the date of said mortgage claimed to be owned by the defendant, and its date of record, and then makes further allegations as follows, viz.: “The plaintiff alleges, on information and belief, that the said John E. Bush did not sign, execute, or deliver the said mortgage to the said Emeline Maxwell, nor any one for her; that the said mortgage never had any legal or valid existence; that the said mortgagor never had any consideration whatever for said mortgage; that the said mortgage was made and signed by the defendant without the knowledge or consent of the said John E. Bush, and without giving him any value for the same, and fraudulently made to cheat and defraud the said John E. Bush, or any one who might purchase said land of him, and that by the said fraud of the defendant in knowingly and fraudulently making said mortgage and holding the same, and claiming said mortgage to be legal and valid, the defendant did knowingly and falsely and fraudulently represent to the plaintiff that said mortgage was valid; that it was executed by the said John E. Bush for the full consideration of six hundred dollars, paid by the said Emeline Maxwell, and was a legal, binding mortgage; that defendant knew said statements were false and fraudulent when made to the plaintiff; that said statements of the defendant to the plaintiff were knowingly and fraudulently made with intent to cheat and defraud the plaintiff, and obtain from him the said sum of five hundred and ten dollars, and induce the plaintiff to sell the balance of said land for three hundred and ninety dollars loss for the benefit of the defendant; that plaintiff believed the said false and fraudulent statements of the defendant made to the plaintiff, and relied upon the superior experience and knowledge of the defendant, and, relying upon such false and fraudulent statements of the defendant, knowingly made to this plaintiff as aforesaid, the plaintiff believed the said mortgage had for a good consideration been signed, executed, and delivered by the said John E. Bush, whereas such statements were false, and the defendant knew they were false at the time he made them to the plaintiff, and the plaintiff, believing such statements, and relying upon them, was induced thereby to pay the defendant the said sum of five hundred and ten dollars, and to deed and convey a portion of said land for three hundred and ninety dollars loss, and by the said false and fraudulent statements knowingly made by the defendant to the plaintiff he was cheated and defrauded of the sum of nine hundred dollars as aforesaid, on the 28th day of March, 1889; and that by reason of the said false and fraudulent representations and acts of the defendant, and his knowingly, unlawfully, and fraudulently obtaining the said sum of five hundred and ten dollars of the plaintiff, and securing the said conveyance of part of said land for loss as aforesaid, the plaintiff was cheated and defrauded by the defendant to the amount of nine hundred dollars, and the defendant then became indebted to him in the said sum of nine hundred dollars; that the said sum of nine hundred dollars became due and payable from the defendant to the plaintiff on the said 28th day of March, 1889, and before the commencement of this action, and is still due and wholly unpaid, and the defendant is now justly indebted to the plaintiff for said sum of nine hundred dollars, and interest thereon from the 28th day of March, 1889; wherefore the plaintiff demands judgment against the defendant for nine hundred dollars, and interest thereon from the 28th day of March, 1889, besides the costs of this action.” The answer denies all fraud and all fraudulent representations as alleged in the complaint, and alleges “that the note and mortgage for $600 were given to him to pay an indebtedness then due from said John E. Bush to the defendant, also to secure the future services of the defendant as an attorney, and also in part as a gift from John E. Bush to the defendant.” He denies all fraud in obtaining the note and mortgage from said John E. Bush, and alleges that said note and mortgage were duly and voluntarily executed by the said John E. Bush. The answer further alleges that before the said pla...