Desmond v. McNamara

• Decision Date: 15 May 1900
• Parties: DESMOND v. MCNAMARA ET AL.
• Court: Wisconsin Supreme Court

107 Wis. 126

82 N.W. 701

DESMOND

v.MCNAMARA ET AL.

Supreme Court of Wisconsin.

May 15, 1900.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Humphrey J. Desmond against Elizabeth McNamara and others to foreclose a mortgage. From a judgment on a cross bill in favor of defendants Elizabeth McNamara and Mary Ann McNamara, defendant Francis S. McNamara appeals. Reversed.

Action to foreclose a mortgage. The respondents, Elizabeth McNamara and Mary Ann McNamara, and the appellant, Francis S. McNamara, all joined as defendants, were each personally liable for the mortgage indebtedness. The only contest was between appellant and respondents. Issue was joined between them by the answer of respondents duly served upon appellant, and his answer thereto. That issue was in respect to whether appellant was bound to protect the respondents against liability for the mortgage indebtedness. The court found, as facts, on such issue, that for a considerable period of time prior to January 24, 1894, the respondents were in the employ of their father under a contract for hire; that on said day the appellant, for a good and valuable consideration, sold and conveyed the mortgaged premises to the respondents, which premises were then incumbered by a mortgage in place of which the mortgage in suit was subsequently given; that appellant agreed to pay the mortgage indebtedness and to cause the land to be relieved of the incumbrance thereon at the maturity of such debt; that when the note evidencing such debt matured, appellant induced the respondents to remortgage the property to secure their note of $2,500 to pay it, he guarantying, in writing, the payment thereof, and verbally promising the respondents to take care of the same; that after the conveyance of the property to respondents as aforesaid, the father paid the interest on the mortgage and also paid the taxes on the property up to 1897; that this action is to enforce such mortgage. On such facts judgment was rendered against appellant and in favor of respondents for the total amount of the mortgage indebtedness and for costs recovered by plaintiff against the defendants, and for the costs of litigating the issue between respondents and appellant.

J. E. Wildish, for appellant.

Blatchley & Burke, for respondents.

MARSHALL, J. (after stating the facts).

It is contended that the finding, that there was a valuable consideration to support the conveyance of the property by appellant to respondents, is not supported by the evidence; that, on the contrary, the evidence shows clearly that the only consideration for such conveyance was the relationship existing between the parties; that otherwise it was a mere gift. We do not deem it necessary to decide that controversy, but will say, from a careful examination of the record, we have not been able to discover, very clearly, at least, that it supports the finding of the trial court.

If the finding, that appellant agreed to pay off the incumbrance at the time the conveyance of the land was made, is not supported by competent evidence, waiving the question of whether there was any consideration to support such a promise, then, manifestly, the judgment is wrong and must be reversed.

There were two deeds. The evidence satisfactorily shows that they were delivered at the same time and that one was intended as much as the other to be the means of vesting the title to the property in the respondents. The purpose of making two deeds appears to have been to enable each of the grantees to have evidence of her interest in the property. In one of the deeds the grantees expressly assumed and agreed to pay off the incumbrance on the property; in the other, the covenant against incumbrances expressly excepted the mortgage thereon, indicating, as clearly as such an exception can, that the grantees were bound to pay off the incumbrance, to the extent of the property, at all events.

The finding, that appellant agreed to pay the mortgage indebtedness secured by the mortgage in suit, was based wholly on testimony of the respondents that the appellant, when the deed was made, promised to do so, and that he repeated such promise when the new mortgage was made. No fraud is claimed, as we understand it, or, if claimed, none was found and none established by the evidence that would vary the relations between the parties as evidenced by the writings to which we have referred. When the respondents signed the note and mortgage in suit, the evidence shows, they fully understood that they thereby assumed the mortgage indebtedness, as between them and the mortgagee. But they say they relied upon the promise of their father, made when the deeds were delivered to them, to take care of such indebtedness, and the repetition of such promise when the mortgage in suit was made. So the case, on this branch, on the evidence, comes down to this: Can the transfer of the property, indicating by its terms that the grantor, as between himself and the grantees, was absolved from all responsibility for the mortgage indebtedness, be varied by parol? On that point...