Coates v. Marsden

• Decision Date: 22 February 1910
• Citation: 142 Wis. 106,124 N.W. 1057
• Parties: COATES v. MARSDEN.
• Court: Wisconsin Supreme Court

142 Wis. 106

124 N.W. 1057

COATES

v.MARSDEN.

Supreme Court of Wisconsin.

Feb. 22, 1910.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Action by W. M. Coates against J. S. Marsden. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint alleged ownership by the plaintiff on the 18th day of December, 1906, of 240 acres of land in Juneau county, subject to a mortgage of $2,915 held by the defendant; that prior to said date the defendant threatened to foreclose the mortgage; that owing to poor crops for a number of years plaintiff was very hard up, and that in order to save himself from financial ruin he executed a deed of the 240 acres of land aforesaid to the defendant, for the nominal consideration of $1,933.50, indorsed upon the mortgage, in consideration of an agreement by defendant that he (plaintiff) should have the privilege of selling the land and retaining all that he could realize above said sum of $1,933.50, with interest; and that it was also agreed that defendant could sell the land at a fair price, and if he did so, would pay to plaintiff all that he realized over and above $1,933.50, with interest, and also that the deed given to defendant should be considered to be security only for said sum of $1,933.50 and interest. It was further alleged that the lands so deeded were reasonably worth $6,000 at the time of the deed; that on March 4, 1907, the defendant sold and conveyed the lands to one Kennedy for the consideration paid of $6,000, and that thereby the sum of $3,947.76 became due to the plaintiff, being the difference between $1,933.50 with interest at 7 per cent. from December 18, 1906, until November 4, 1907, and said sum of $6,000 which said defendant by said agreement agreed to pay to this plaintiff. Judgment was demanded for this sum, with interest from November 4, 1907. The defendant by answer admitted plaintiff's ownership of the lands, the mortgage indebtedness, the execution of the deed to himself, and his subsequent sale of the land to Kennedy, but denied that he received from Kennedy any sum in excess of $1,933.50, with interest, and denied that he ever agreed to pay any such excess to the plaintiff, or that the deed to him was to have the effect of a mortgage. He admitted, however, that he gave plaintiff an option to purchase the premises for $1,933.50 and interest, subject, however, to defendant's right to sell the same at any time to a bona fide purchaser.

There was a jury trial. It appeared that the plaintiff in December, 1906, owned 320 acres of farm land, beside a house and lot, in the village of Finley, and that it was all covered by a mortgage of $2,915 held by the defendant; that as a result of negotiation between the parties it was agreed that plaintiff should deed to the defendant the 240 acres in dispute here for the expressed consideration of $1,933.50, which sum was considered as being the same proportion of the whole debt as the land deeded was of the entire land, and that this deed was duly executed and delivered December 18, 1906, and the sum of $1,933.50 was indorsed on the note by the defendant, and the land released from the mortgage; that at the same time, and as a part of the same transaction, a written agreement or option was drawn by a lawyer, signed by Marsden, and given to the plaintiff, which declared that Marsden gave to Coates an option on the land (describing it) for $1,933.50 with 7 per cent. interest till paid, and all taxes thereafter paid by Marsden, as well as all improvements which Marsden may put on the land, and further providing that, in case Coates elected to purchase the land under the option, he was to pay the purchase price at a certain bank at Edgerton, Wis., and then receive a warranty deed of the land free of liens, and that the time within which the payment might be made should continue until Coates should wish to terminate it, or until Marsden should sell the land to a bona fide purchaser and so notify Coates. The agreement further stated that it was given to give Coates the right to sell the land to other parties if he could do so in a reasonable time and realize more therefrom than had been allowed by Marsden, who had taken a deed in payment of $1,933.50 on a mortgage held by him on this and other land. It further appeared that in November, 1907, the defendant traded the land in question to one Kennedy in exchange for 200 acres of land in Rock county, subject to a mortgage thereon of $9,000, and that in Marsden's deed to Kennedy the consideration was expressed as the sum of $6,000.

The plaintiff testified that while he and Marsden both dictated what should go into the written agreement or option, and that it was read over to him by the lawyer, and was intended to cover the whole agreement, still he testified (against objection) that it did not cover the whole bargain, and that as matter of fact Marsden agreed that if he (Marsden) sold the land himself, he was only to keep out of the purchase price the $1,933.50 and interest, with taxes and any improvements he might put on the land, and was to pay the balance to the plaintiff; “that all he wanted out of the land was his just due, and what was realized out of it over and above was to be mine” (Coates). There was...