City Bank of Portage v. Plank

• Decision Date: 22 February 1910
• Citation: 124 N.W. 1000,141 Wis. 653
• Parties: CITY BANK OF PORTAGE v. PLANK.
• Court: Wisconsin Supreme Court

141 Wis. 653

124 N.W. 1000

CITY BANK OF PORTAGE

v.PLANK.

Supreme Court of Wisconsin.

Feb. 22, 1910.

Appeal from Circuit Court, Waushara County; Charles M. Webb, Judge.

Action by the City Bank of Portage against Edward S. Plank, impleaded with others. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss.

Action to foreclose a certain mortgage on the south one-half of the southwest quarter of section 21 in town 20 north, of range 8 east, in the county of Waushara, Wis., dated October 1, 1904, for $3,000, executed by the defendants William Eachor and Flossie Eachor to defendant M. Plank, and by him assigned on November 15, 1904, to the plaintiff to secure his promissory note of $1,500 dated October 15, 1904, upon which there was due the principal and interest from April 3, 1908. The plaintiff also prayed a cancellation of a discharge of that mortgage, which had been made by M. Plank and recorded on or about September 3, 1907, after its assignment but before the record thereof, which was June 29, 1908. It appeared and was found by the court that one E. D. Plank, the father of both M. Plank and Edward S. Plank, had, prior to all these transactions, made a will, by which, after certain legacies, he devised and bequeathed to the appellant, Edward S. Plank, all of a considerable residue of his estate, charged with the care and support of the mother, including therein specifically a certain 200-acre farm belonging to E. D. Plank; on January 23, 1905, he sold that farm to M. Plank and received as consideration therefor a certain $3,000 mortgage executed by the same defendants, the Eachors, to M. Plank on certain 120 acres of land contiguous to the 80 acres included in plaintiff's mortgage, the whole being used together as a farm. The father, E. D. Plank, died, and his will was admitted to probate in September, 1906, and Edward S. Plank was appointed executor. Early in 1907, the Eachors having failed to pay anything on their two mortgages, and having abandoned their farm of 200 acres, Edward S. Plank, who was a farmer and had sold his own farm, conceived the idea of purchasing the Eachor farm, a part of it in substitution for the $3,000 mortgage held by the estate, and which belonged to him either as executor or residuary legatee charged with the support of the mother. He and M. Plank conferred about the matter and consulted counsel, and the plan was conceived of having that portion of the farm, which was taken in consideration of the estate's mortgage, conveyed directly into the same title as the mortgage had been held, to the end that it might stand specifically charged with the mother's rights. Accordingly E. S. Plank negotiated with Eachor for a conveyance of the entire 200 acres in consideration with the cancellation of the $3,000 mortgage which had been assigned to E. D. Plank and was part of his estate, and $1,800 in money which M. Plank agreed with the Eachors in satisfaction of the other mortgage to M. Plank, being that assigned to the bank and here sued on; but, the assignment being unrecorded, that fact was wholly unknown to either Edward S. Plank or to Eachor. An abstract was obtained and submitted to the attorney of Edward S. Plank, accompanied by a certificate of the register that no assignment of the mortgage sued on appeared of record. Conveyance or releases were obtained from certain other parties extinguishing rights in the land, and in May, 1907, two full warranty deeds were executed by Eachor and his wife and deposited with M. Plank, one running to E. D. Plank, his heirs and assigns of the eighty now in question and one of the other forties, the other to Edward S. Plank of the remaining 80 acres, and at about the same time, and before the delivery of the deeds to E. S. Plank, M. Plank executed a complete discharge of the mortgage to him, which had been assigned to the plaintiff. Thereupon the deeds were delivered to Edward S. Plank, who delivered his discharge of the estate mortgage and paid the $1,800 in addition, and thereafter entered into possession of the entire 200-acre farm. The deeds and releases were recorded September 3, 1907. Final order in the E. D. Plank estate, dated January 27, 1908, assigned the residue, including this land by specific description, to appellant subject to charge for his mother's support. None of the defendants other than Edward S. Plank made any appearance or interposed any defense. The court held that deed, running to a person already dead, was absolutely void and of no effect, and left the title in Eachor, and accordingly entered judgment for the full sum of the Eachor mortgage in favor of the bank and for sale of the mortgaged premises and payment of the full proceeds to the extent of such $3,000 and interest to the bank.

From such judgment the defendant Edward S. Plank appeals.E. F. Kileen (B. R. Goggins, of counsel), for appellant.

Rogers & Rogers (H. E. Andrews, of counsel), for respondent.

DODGE, J. (after stating the facts as above).

1. Appellant attacks the holding that the deed to E. D. Plank was ineffective to convey any title or interest in the mortgaged premises. It is a rule asserted from early times that no grant can exist without a grantee. This is of course axiomatic. The title cannot pass from the grantor unless it passes to some one. As a corollary, it is declared in many cases that a deed or grant to a person who does not exist at the time of the grant is void. Such statements are unassailable if properly understood. If the grant, in the intention of the parties, is attempted to be made to some person who has no existence, it cannot take effect. Neal v. Nelson, 117 N. C. 393, 23 S. E. 428, 53 Am. St. Rep. 590. Many technical rules, however, have yielded to more rational views in modern times. The real intention of the parties is to be sought and effectuated by courts when possible. If it was the intention both of grantor and grantee that the grant should be to some person or persons in existence, that intent may be effectuated by ascertaining under proper rules of evidence the intention of the parties, although such person be not designated by his legal or usual name. It has been said in many cases that a conveyance to a partnership name could have no validity because a partnership has no legal existence. But the overwhelming weight of modern authority is that courts may ascertain the fact that certain existent individuals are accustomed to be called by the association name, either corporate or copartnership, and draw the inference that those persons were intended to be the recipients of the title, although their true names did not appear in the firm name at all, and even if the names of other existent persons did so appear. Again, it is recognized in a multitude of cases that if the court can find that a certain person was intended as grantee, it matters not what name is given him in the deed. The case of Staak v. Sigelkow, 12 Wis. 234, is an illustration....