Hei v. Heller

• Decision Date: 22 November 1881
• Parties: HEI, ADM'R, v. HELLER.
• Court: Wisconsin Supreme Court

53 Wis. 415

10 N.W. 620

HEI, ADM'R,

v.HELLER.

Supreme Court of Wisconsin.

Filed November 22, 1881.

Appeal from circuit court, Fond du Lac county.

A. G. Randall and T. W. Spence, for appellant.

Henry J. Gerpheide, for respondent.

ORTON, J.

On the third day of April, 1876, Carl Heller, since deceased, and his wife, Wilhelmina, executed a warranty deed of certain lands therein described to their son, August Heller, the said defendant, in consideration of $1,000, which, according to a certain bond executed at the same date by the said August, secured by a mortgage on the land, was to be paid in instalments--the first of which, of $200, the third day of April, 1878, and the other, of $800, on the the third day of April, 1887. In the body of said deed was the agreement of said August to furnish to the said Carl Heller and wife, each year during their natural lives, certain provisions, hay, and fire-wood, the free use and occupancy of a small dwelling-house situated on a part of the premises, and of one acre of land, to be cultivated for them, and the use of the horses on the farm when not needed for field work, harvesting, etc.

On the third day of November, 1876, the said Carl Heller died intestate, and on the third day of April, 1879, the plaintiff was appointed the administrator of his estate. At the time of his death his son August, the defendant, lived with him on the farm, and afterwards a large amount of personal property, consisting of cattle, horses, hogs, sheep, hens, wagons, sleigh, reaper, plow, cultivators, fanning mill, grain, hay, potatoes, wood, and household furniture, of the value of $1,250, then on said farm, which property belonged to his father, was found in his possession. To the complaint for the delivery of this property as a part of the estate of Carl Heller, deceased, the defendant answered substantially that he purchased it of his father at the time of the execution of said deed, and as a part of the consideration of his said agreement in said deed, and of said bond and mortgage, and as a part of the same transaction; and he was allowed by the circuit court to prove such facts, against the objection of the plaintiff. That this evidence was so allowed and permitted is the error complained of on this appeal; and the learned counsel of the appellant insists that this evidence changed, varied, and added to the terms of the deed, agreement, and bond and mortgage which constituted the written evidence of the whole transaction, and was, therefore, inadmissible for such purpose.

It will be observed that it cannot be claimed that this property is a part of the consideration of the deed, and therefore may be shown by parol, for the title to it comes from the same source as the title to the land, so that the claim of the defendant must be that, in addition to the land conveyed by the deed, this personal property constituted a part of the consideration of the agreement in the deed, and of the bond and mortgage.

To authorize the admission of parol evidence to prove that the purchase of this personal property by the respondent constituted a part of the consideration of his agreement to provide for the support of the deceased and his wife during life, and of his $1,000 bond and mortgage to his father, in addition to the conveyance of the land, the principle is invoked “that when only part of an entire agreement is reduced to writing, the residue may be proved by extrinsic evidence.” To make such principle applicable, it must appear from the writings themselves that the whole agreement was not reduced to writing, and that the writings are incomplete to express the entire agreement. This is as well illustrated by the two cases decided by this court, cited by the learned counsel of the respondent in order to establish the right to prove by parol, in this case, the consideration not expressed in the writings, as in any which can be found.

In Farmers' Loan & Trust Co. v. Commercial Bank of Racine, 15 Wis. 440, it was sought to show that certain railway chairs, not used in the construction of the railway, passed by certain mortgages on the road and its equipments, which failed to express such an intention, and his honor, the lamented Judge Paine, says in respect to it: “But it must be borne in mind that it is not the business of construction to look outside of the instrument to get at the intention of the parties, and then carry out that intention whether the instrument contains language sufficient to express it or not.”

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