Eaton v. Dewey

• Decision Date: 17 March 1891
• Citation: 79 Wis. 251,48 N.W. 523
• Parties: EATON v. DEWEY ET AL.
• Court: Wisconsin Supreme Court

79 Wis. 251

48 N.W. 523

EATON

v.DEWEY ET AL.

Supreme Court of Wisconsin.

March 17, 1891.

Appeal from circuit court, Green county.

This is an action to foreclose an equitable mortgage given under circumstances to the effect that August 1, 1879, Nelson Dewey made his certain promissory note payable to the order of J. Allen Barber, two years from the date thereof, for $1,500, with interest at the rate of 10 per cent. per annum, to be paid annually, that on the same day, and as attorney in fact for his wife, Nelson Dewey executed and delivered to the said J. Allen Barber a warranty deed of the lands described, and the same was recorded August 2, 1879; that said deed was in fact given upon an agreement that the same should be security for the payment of said note; that the net rents arising from said lands should be applied-- First, in payment of taxes; secondly, in payment of interest on said note; and, thirdly, in payment of the principal; and when the same should be fully paid, to reconvey said lands to the said Catherine A. Dewey; that, in consideration of said note and mortgage, the said Barber loaned to the said Nelson Dewey $1,100 in cash, and for the balance thereof agreed to pay and discharge a certain mortgage on a portion of said lands owned by the state of $400; that the power of attorney under which the said Nelson Dewey acted in making said equitable mortgage was executed and acknowledged by the said Catherine A. Dewey in the presence of two subscribing witnesses, August 12, 1875. Aside from such acknowledgment, the following is a copy thereof, to-wit: “Know all men by these presents that I, Catherine A. Dewey, the wife of Nelson Dewey, of the county of Grant and state of Wisconsin, have nominated, constituted, and appointed, and by these presents do nominate, constitute, and appoint, Nelson Dewey, my said husband, Jared C. Gregory, of the city of Madison, George W. Ryland, of the town of Lancaster, and John H. C. Sneclode, of the town of Cassville, all in the said state, my true and lawful attorney and attorneys in fact and law, for me and in my name and stead, to demand, recover, and receive, and to settle and adjust any and all demands and debts, dues, obligations, bonds, notes, actions, or causes of action belonging, or which may at any time hereafter belong, to me, or in which I am now or may at any time hereafter be interested; and upon such demand, recovery, suit, receipt of payment, settlement, and adjustment of any such demands, debts, dues, obligations, bonds, notes, actions, causes of actions, and claims for me and in my name and stead, all proper receipts, releases, discharges, and acquittances, to execute, seal, acknowledge, and deliver; and I do hereby further authorize and empower my said attorney and attorneys in fact and law, to grant, bargain, sell, release, quitclaim, rent, lease, and to farm-let, and to mortgage for any purpose, any and all lands and real estate, chattels, real and personal, and personal estate which I now own, or may hereafter own, or have any interest or title of, in, or to, wherever the same may be situated or located in the United States of America, or any of the said states or anywhere else; and upon any such grant, bargain, sale, release, conveyance, quitclaim, renting, lease, letting, and mortgage, for me, and in my name and stead, all proper deeds, conveyances, contracts, leases, mortgage deeds, notes, bonds, and writings obligatory, or other written instruments, under seal or otherwise, to execute, seal, and deliver; and I do hereby further authorize and empower my said attorney or attorneys in fact and law to borrow money for me, and in my name, and to release and convey any and all dower, and rights of dower, that I now have, or may at any time hereafter have, of, in, and to any lands and real estate and chattels real, wherever situated and located, and for me and in my name and stead to execute, seal, acknowledge, and deliver all proper notes, bonds, releases, and conveyances for any such purpose; and especially I do hereby authorize and empower my said attorney Nelson Dewey, or Jared C. Gregory, or either, whenever he shall so do, to select for me, and in my name, to borrow money, and to secure the payment thereof, to mortgage my residence and homestead property in the city of Madison, [omitting immaterial portion;] and generally hereby giving and granting unto my said attorney or attorneys, or either of them, full power and authority to do and perform jointly and severally, and without...