Cerney v. Pawlot

• Decision Date: 15 May 1886
• Citation: 66 Wis. 262,28 N.W. 183
• Parties: CERNEY v. PAWLOT AND OTHERS.
• Court: Wisconsin Supreme Court

66 Wis. 262

28 N.W. 183

CERNEY

v.PAWLOT AND OTHERS.

Supreme Court of Wisconsin.

May 15, 1886.

Appeal from circuit court, Kewaunee county.

The action was brought to foreclose a mortgage on 40 acres of land in Kewaunee county, executed by the defendants Joseph Pawlot and wife to the plaintiff, by the name of Josepha Drichta. The mortgage was dated July 3, 1868, and recorded in the proper office four days later. The condition thereof was the payment by the mortgagors to the mortgagee of $200 in five years from the date thereof, without interest, according to a note of the same date executed to the plaintiff by the mortgagor, Joseph Pawlot. Four other persons, alleged to have or claim some interest in the mortgaged premises accruing subsequently to the mortgage, and subject to it, are made defendants in the action. Mathias Drichta was the father of the plaintiff. He owned the mortgaged land in 1868, and conveyed, or caused the same to be conveyed, to the defendant, Joseph Pawlot. The mortgage in suit, and the note it was given to secure, was for a portion of the purchase money, and were executed to the plaintiff by direction of her father. Pawlot delivered the same to Mathias, who procured the mortgage to be recorded, and retained the note and mortgage in his own hands. The plaintiff was then about 15 years old. In 1869 Mathias attempted to release the mortgage by an entry in the record thereof as follows:

“I, Joseph Drichta, hereby acknowledge satisfaction and payment in full of these mortgage, and discharge the same of record.

Dated May 6, A. D. 1869.

JOSEPH his X mark. DRICHTA.

Done in presence of

FRED. JOHANNES, Register.”

He then destroyed both the note and the mortgage. At the same time Pawlot conveyed the mortgaged lot to one Wandrash by deed of quitclaim. Afterwards Wandrash conveyed the land in parcels to some of these defendants. The circuit court found that the mortgage debt was paid to Mathias. In 1871 the plaintiff intermarried with one Cerney. Mathias Drichta died in 1882. It does not appear that he left any children other than the plaintiff. He left surviving him a wife, who is the mother of Mrs. Pawlot, but not of the plaintiff. This action was commenced in 1883. The foregoing facts appear by the pleadings, proofs, and findings. The court also found that Mathias did not intend the note and mortgage as an advancement to his daughter, and held her chargeable with laches, fatal to her action, in that she did not assert her alleged rights earlier. The conclusions of law are that the plaintiff has no title to the note and mortgage, or interest therein; and that the payment to Mathias Drichta of the debt secured by the mortgage is conclusive against the plaintiff. The plaintiff appeals from a judgment against her dismissing her complaint on the merits, with costs.Sedgwick & Byron, for appellant, Josepha Cerney.

Timlin & Manseau, for respondents, Joseph Pawlot and others.

LYON, J.

1. That there was an effectual delivery of the note and mortgage by the defendant Joseph Powlot, the mortgagor and maker of the note either to Mathias Drichta or the plaintiff, is undisputed and indisputable. The circuit court held, substantially, that the delivery was to Mathias Drichta, and not the plaintiff. That is the significance of the conclusions of law that the plaintiff had no interest in the securities, and was concluded by the payment of the mortgage debt to her father. Whether, in the light of established legal principles, such ruling can be upheld, is the main question in the case.

By the direction and procurement of her father, who paid the consideration therefor, the note and mortgage were executed to the plaintiff, who was named as payee in the note, and mortgagee in the mortgage. Presumptively, this was an an advancement by the father to his daughter. At common law such presumption might have been rebutted by proof, and a trust established in favor of the father, who paid the consideration. But our statute of uses and trusts (Rev. St. 618, c. 96) has abolished such resulting trusts. It is enacted in section 2077 that “when a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment is made, but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.” The next section merely preserves the trust in favor of creditors, and is of no importance in this case. That the provisions of the above sections extend to and include mortgages is not questioned. See section 2242. It necessarily results from these statutes that, when the mortgage in suit was delivered to Mathias Drichta, such delivery inured at once to the benefit of his daughter, the mortgagee named therein, by way of advancement to her, and he is precluded from asserting any trust therein, or in the debt secured thereby, resulting to him. If a formal acceptance by the plaintiff of such advancement is essential to her title, there is satisfactory proof that her husband, acting by her authority, endeavored to obtain the securities for her; also that on the occasion of her marriage her father promised or spoke of the mortgage as her marriage portion; and that in other ways (besides bringing this suit) she sought to obtain her rights in the securities. This amounts to a sufficient acceptance.

These views are enforced in many of the authorities cited by counsel for the plaintiff, and in some of those cited by counsel for defendants. To the same effect are the adjudications of this court in Week v. Bosworth, 61 Wis. 78;S. C. 20 N. W. Rep. 657;McPherson v. Featherstone, 37 Wis. 641. See, also, Allen v. Allen, 58 Wis....