Jones v. Parker
| Decision Date | 08 February 1881 |
| Citation | 51 Wis. 218,8 N.W. 124 |
| Parties | JONES v. PARKER AND ANOTHER, IMPLEADED, ETC. |
| Court | Wisconsin Supreme Court |
Appeal from circuit court, Grant county.
Action to foreclose a mortgage executed by the defendant A. H. McLaughlin to the plaintiff, dated March 2, 1874, given on 120 acres of land, to secure the payment of $400 and interest. Judgment by default was taken against all of the defendants. Afterwards, on motion of the defendants composing the firm of Parker, Hildebrand & Co., execution of the judgment was suspended as to 40 acres of the mortgaged premises, alleged to be a homestead, until it could be determined whether the sum was subject to plaintiff's mortgage. An issue was thereupon made and the question tried. The following findings of fact on such issue (which are fully supported by the evidence) contain a sufficient statement of the case:
“ First. That on or about September 16, 1865, the said defendant Albert H. McLaughlin purchased from his father, Henry A. McLaughlin, the premises described in the complaint herein.
Second. That as part of the purchase price thereof said Albert H. McLaughlin paid to Henry A. McLaughlin $500, which he borrowed from said plaintiff for said purpose; that said purpose was known to said plaintiff at the time the money was borrowed; that said Henry A. McLaughlin, as well as said Albert H. McLaughlin, was present at the time said money was borrowed from said plaintiff, and assisted said Albert H. McLaughlin in procuring such loan to be mad,e in order that it might be paid to him as part of the purchase price of said lands; that a mortgage was then and there executed by said defendants A. H. McLaughlin and wife to said plaintiff to secure the payment of said sum of $500, so borrowed as aforesaid.
Third. That afterwards, and about the second day of March, 1874, while said debt was still unpaid and secured by said mortgage so executed on said lands by said Albert H. McLaughlin and wife, they, said Albert H. McLaughlin and wife, sold and conveyed the said premises to the defendants Ole O. Swensend and Peter O. Swensend.
Fourth. That as part of the consideration agreed to be paid by Ole O. and Peter O. Swensend for said lands and premises, they agreed to assume and pay as part of such consideration $400 of the said debt to said plaintiff, secured as aforesaid.
Fifth. That thereupon said A. H. McLaughlin, Ole O. and Peter O. Swensend met at Lancaster, in said county, to make and deliver the necessary papers to effect said conveyance of said lands to said Swensends upon the terms and conditions aforesaid.
Sixth. That said Swensends wanted more time in which to pay said $400, assumed by them, of the debt to this plaintiff, which was then due to him, and that to accommodate them in that respect it was agreed by the parties that plaintiff should release the said mortgage which he then held, executed by said Albert H. McLaughlin and wife, and that said A. H. McLaughlin should execute a new one for the same debt, extending the time of payment thereof, at the request of and to accommodate said Swensends, who had assumed and promised to pay the same; that plaintiff objected to taking a new mortgage instead of the former one, unless it should also be signed by said Achsah M. McLaughlin, wife of said Albert H. McLaughlin, she not being present; that all parties were then advised that as the mortgage was to be in place of another, which was signed by Mrs. McLaughlin, it was not necessary that she should sign this one, and thereupon, as part of one and the same transaction, the said old mortgage was released and the new one executed by A. H. McLaughlin, but not signed by his wife for the reason aforesaid; and thereupon, also as part of one and the same transaction, the said deed from A. H. McLaughlin and wife to said Swensends, and the said mortgage from McLaughlin to the plaintiff, and the mortgage from said Swensends to said A. H. McLaughlin, to secure the payment of $1,000, the remaining unpaid portion of...
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