Kaufer v. Stumpf

• Citation: 109 N.W. 561,129 Wis. 476
• Parties: KAUFER v. STUMPF ET AL.
• Decision Date: 07 November 1906
• Court: Wisconsin Supreme Court

129 Wis. 476

109 N.W. 561

KAUFER

v.STUMPF ET AL.

Supreme Court of Wisconsin.

Nov. 7, 1906.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Nathan Kaufer against Charles J. Stumpf and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Action to foreclose a mortgage and to obtain a judgment against Charles J. Stumpf as one personally liable for the mortgage indebtedness, as well as against John Stumpf, Jr., maker of the note mentioned in the mortgage.

The complaint contained all the usual allegations for the foreclosure of a mortgage as to the defendant John Stumpf, Jr. The note was for $3,500.00, payable two years after date with interest at the rate of 6 per cent. per annum, payable according to the tenor and effect of coupons attached thereto, which provided for interest at the rate of 7 per cent. per annum after due. There were appropriate allegations showing the due execution of the mortgage, the conditions thereof, the recording of the same and default in the performance of such conditions creating the cause of action for foreclosure. There were also allegations as grounds for the alleged liability of Charles J. Stumpf, in effect, as follows: On or about May 29th, 1899, at a sheriff's sale to enforce a judgment of foreclosure of a mortgage wherein Charles J. Stumpf was adjudged to be personally liable for the mortgage indebtedness, the property involved was bid in by the plaintiff, acting through an agent, in his own name for said Charles J. Stumpf for $3,400.00, pursuant to an agreement between them that the sheriff's deed should run to the plaintiff, and upon the sale being confirmed that he should deed the property to said Stumpf and receive from him reimbursement for all money advanced in so securing the property. The total sum so advanced was $3,500.00. Subsequent to the sale it was duly confirmed, and thereafter on or about June 13th, 1899, said Charles J. Stumpf informed plaintiff that he was unable at once to pay back the advances, but could and would secure the same by a mortgage on the premises; that he would have the title to the property vested in his brother John Stumpf, Jr., and then have the latter give a note for $3,500.00, and a mortgage on the property to secure the payment thereof, and that he, the said Charles J. Stumpf, would indorse said note and would pay the indebtedness with interest as provided in said note. Plaintiff accepted the proposition of said Charles J. Stumpf, deeded the property to said John Stumpf, Jr., delivering the deed to Charles and receiving from him the note of John Stumpf, Jr., and the mortgage on the property in suit.

The defendant Charles J. Stumpf answered, among other things, admitting that plaintiff purchased the property involved under the circumstances stated in the complaint, and alleging that it was agreed that plaintiff should convey the property to said Charles J. Stumpf or such person as should be mutually agreed upon and that he should pay plaintiff such sum over and above $3,500.00, as might be necessary to make up the difference between the latter sum and the amount due under the judgment of foreclosure and as security for the said $3,500.00, a mortgage should be given by the person so receiving the conveyance of the premises; that pursuant thereto $638.00, was paid plaintiff and he conveyed the property to John Stumpf, Jr., who executed the note and mortgage in suit and delivered the same to plaintiff. The answer contained a specific denial that Charles J. Stumpf agreed to pay the note.

As a defense section 2302, Rev. St. 1898, was invoked upon the ground that the agreement between plaintiff and Charles J. Stumpf was merely verbal.

No issue was taken on any of the allegations of the complaint as to the cause of action against John Stumpf, Jr.

The court found all the facts requisite to a judgment of foreclosure as to John Stumpf, Jr., and found that there was justly due plaintiff upon the note and mortgage covering the indebtedness of Charles J. Stumpf, for which the note and mortgage were given, $5,038.62. The court further found, as regards the liability of Charles J. Stumpf, that he merely promised orally to guaranty the payment of the note and mortgage and that such promise was void under the statute of frauds.

The court further found, as to the liability of Charles J. Stumpf: Plaintiff purchased the mortgaged property for Charles J. Stumpf at a foreclosure sale, as alleged in the complaint, under an agreement that the sheriff's deed should run to the plaintiff and that upon its being confirmed Charles J. Stumpf should reimburse plaintiff for all moneys advanced by him in the matter. To complete the purchase plaintiff advanced $3,400.00, took the sheriff's deed, and the same was thereafter confirmed. Plaintiff also advanced for said Charles J. Stumpf, at his request, a further sum of $100.00, towards discharging the deficiency of $738.44, due on the foreclosure judgment, for which said Charles J. Stumpf was liable. Thereafter, having in view the carrying out of the aforesaid agreement, said Charles J. Stumpf, representing that he was unable at once to pay back the said sum of $3,500.00, said to plaintiff's agent that he would secure the same by a mortgage on the premises; that to avoid injuring his financial standing he would have the title to the property transferred to his brother John Stumpf, Jr., and have him give the mortgage to plaintiff to secure said sum of $3,500.00, and that he would guaranty the payment of his brother's note. On June 13th, 1899, $638.44, the balance of the deficiency on the foreclosure judgment, was paid by said Charles Stumpf. Relying upon such representations and promises plaintiff deeded the property in question to said John Stumpf, Jr., and received from him, at the same time, the note and mortgage in suit. Such note and mortgage were given to secure the $3,500.00, and interest due to plaintiff from said Charles J. Stumpf at the time the note and mortgage were given.

Upon such decision and findings the court concluded that Charles J. Stumpf was not liable for the mortgage indebtedness and that he and his wife Agnes, who was made a defendant, were entitled to...