Falkner v. Hackett

• Decision Date: 24 November 1899
• Citation: 80 N.W. 940,104 Wis. 608
• Parties: FALKNER v. HACKETT ET AL.
• Court: Wisconsin Supreme Court

104 Wis. 608

80 N.W. 940

FALKNER

v.HACKETT ET AL.

Supreme Court of Wisconsin.

Nov. 24, 1899.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Action by Frank Falkner against Charles M. Woodard, Mary Woodard, and Thomas A. Hackett to foreclose a real-estate mortgage. From a judgment in favor of defendant Woodard, defendant Hackett appeals. Reversed.Eaton & Lewis, for appellant.

C. E. Armin and Julius E. Roehr, for respondent.

CASSODAY, C. J.

This action was commenced May 29, 1897, to foreclose a note and mortgage for $1,258.60, given March 21, 1896, by the defendant Woodard and wife to the defendant Thomas A. Hackett as a part of the purchase price of the premises described; that April 12, 1897, Hackett assigned the note and mortgage to the plaintiff as collateral security for the payment of $200 and interest. The complaint is in the usual form. Woodard answered to the effect that Hackett had no title to a portion of the premises, and that he was induced to make the purchase on the misrepresentation of Hackett that he was the owner of all the premises. Hackett was interpleaded, and took issue with the allegations of Woodard's answer, and upon the trial of the issues so formed the court found as matters of fact, in effect, that January 17, 1896, Hackett and Woodard entered into a written contract by the terms of which Hackett agreed to sell and convey by warranty deed, with full covenants, all the premises described, and for which Woodard agreed to pay him $3,000, possession of the premises to be given on or before April 1, 1896; that March 21, 1896, Hackett found it to be impossible to oust the tenant or tenants then in possession of the premises, and so Hackett then and there agreed with Woodard to throw off from the purchase price $500, and Woodard then and there agreed to accept the premises with the tenants then in possession, and assume the responsibility of securing possession from such tenants, by which agreement the purchase price of the premises was then and there fixed at $2,500, and the deed, with full covenants, was duly executed, conveying to Woodard the premises; that at the same time--March 21, 1886--Woodard paid to Hackett a part of the purchase price, and gave back to Hackett the note and mortgage in suit for $1,258.60, the agreed balance of the purchase price remaining unpaid, and which mortgage was recorded April 14, 1896; that Woodard thereupon obtained and went into possession of the premises under his deed, and paid to Hackett the first semiannual installment of the interest on the note secured by the mortgage; that thereafter Woodard discovered that Hackett had no title to a portion of the premises described; that, prior to the making of the contract, Hackett fraudulently represented to Woodard that he was the owner of all the premises described in his deed to Woodard, and had good right to convey the same, and that the same contained 13.86 acres of land, and that Hackett furnished an...