Ketchum v. Breed

• Citation: 66 Wis. 85,26 N.W. 271
• Parties: KETCHUM v. BREED.
• Decision Date: 12 January 1886
• Court: United States State Supreme Court of Wisconsin

66 Wis. 85

26 N.W. 271

KETCHUM

v.BREED.

Supreme Court of Wisconsin.

Filed January 12, 1886.

Appeal from circuit court, Winnebago county.

This is an appeal from an order sustaining a demurrer to a bill of review, on the grounds of insufficiency and defect of parties. The following facts appear, in effect, from the bill, and some of them from the records of this court in the same litigation. Breed v. Ketchum, 51 Wis. 164;S. C. 7 N. W. Rep. 550;Ketchum v. Breed, 54 Wis. 131;S. C. 11 N. W. Rep. 238. February 21, 1875, Horace H. Rich, John W. Stillman, and Martin Rich executed and delivered to Breed their promissory note for $5,000, payable two years from that date, with interest at 10 per cent., payable semi-annually, and, to secure it, at the same time executed and delivered to Breed a mortgage upon the lands described and known as the “Omro Mill.” Upon the maturity of the note, an action was commenced against the makers and G. M. Wakefield and said Henry Ketchum and his wife to foreclose the same; and the complaint of foreclosure, among other things, alleged, in effect, that March 22, 1876, the said mortgagors bargained and sold said mortgaged premises to said G. M. Wakefield, who, as a part of the purchase money thereof, undertook and promised to assume and pay said mortgage, and the whole thereof; that afterwards said Wakefield sold said premises to said Henry Ketchum, who, as a parcel of the purchase money, undertook to assume and pay said mortgage. The usual judgment of foreclosure and sale was demanded, and also “that the defendant Horace H. Rich, John W. Stillman, Martin Rich, G. M. Wakefield, and Henry Ketchum, who are personally liable, may be adjudged to pay any deficiency which may remain after the application of all money so applicable thereto.” Henry Ketchum demurrred to the complaint, and the demurrer was held frivolous, and judgment of foreclosure and sale was entered in the action, October 29, 1877, adjudging, among other things, that Wakefield and Henry Ketchum, as well as the makers of said note, were liable for the payment of any deficiency that might arise on the sale.

January, 1879, the mortgaged premises were sold under the judgment, and the sale was confirmed February 18, 1879. There was a large deficiency on the sale. After the sale, but before confirmation, Henry Ketchum moved the court to vacate the judgment against him personally. The motion was denied, except so far as to permit him to answer. Henry Ketchum then answered, and admitted most of the allegations of the complaint, but, in effect, expressly denied that in his purchase of the premises from Wakefield, and as a part of the purchase money, he undertook to assume and pay said mortgage or any part thereof; or that he in any manner obligated himself or agreed to pay any portion of said mortgage in any manner whatever; or that he was personally liable for any portion of said mortgage debt; and alleged that he was not then and never had been in the possession and enjoyment of the premises, or any part thereof; and that he had never received any rents or profits of said premises, or any part thereof. The cause being thus at issue, was on the calendar for trial at Oshkosh, January 19, 1880, when the said Henry Ketchum signed and swore to an affidavit for a continuance by reason of the absence from the state of one John Fortune, a material witness; and which affidavit, he was informed by his counsel, was sufficient for a continuance, and, relying thereon, went 150 miles from Oshkosh, the place of trial; that February 11, 1880, the attorney for said Ketchum applied for a continuance of said cause upon said affidavit and his own, which was denied, and the fact telegraphed to said Ketchum on the same day; that said Ketchum and one of his witnesses, A. S. Trow, immediately started for Oshkosh, and reached there February 12, 1880, at 2 P. M.; that said Ketchum had been informed by his attorney, and believed and relied upon it, that, if he failed to procure a continuance for the term, he could, under the rule then in force, procure a continuance for the day and from day to day on terms; that said attorney applied for such day continuance February 12, 1880, but that the same was denied in consequence of the former suspension of such rule; that when Ketchum and his said witness reached Oshkosh the trial had been had, and said issue had already been decided against him; that upon the trial of said issue, February 12, 1880, the said Breed proved by said Wakefield and one G. J. Jackson, in effect, that they were present at the time of the trade, and that Henry Ketchum purchased the mortgaged premises of Wakefield for $12,500, of which $7,500 was to be paid in pine lands and $5,000 by assuming and agreeing to pay the note and mortgage to Breed; and that Wakefield testified that he executed and mailed to Henry Ketchum a deed of the premises, containing, as he believed, the agreement stated, and that Ketchum had admitted to him that he had received the deed; that thereupon judgment was rendered against said Henry Ketchum, and in favor of said Breed, on said issue.

Upon an affidavit of said Henry Ketchum, stating in detail his said efforts, and the efforts of his counsel, to continue said cause, and their failure, and the affidavits used on such applications for continuances, and the records and files in the case, a motion was made by him, at the April term of the court for 1880, to open and set aside said judgment as against Ketchum, and grant a new trial therein, which was resisted, and an affidavit presented thereon, sworn to by Ephraim Mariner, to the effect, among other things, that on the afternoon of February 12, 1880, he saw and talked with said Trow at Oshkosh; that Trow then stated to him, in effect, that he and said Jackson were interested with Ketchum in the pine-land property; that they were both present when the trade was made in a hotel at Grand Rapids; that Fortune mentioned in Ketchum's said affidavit was not there; that the trade was made and closed at that time, with the exception of making a deed; that Ketchum then and there, as a part of the bargain, agreed to assume and pay the mortgage debt, substantially as testified to by Wakefield and Jackson; that said Mariner, as attorney for Breed, and said Ketchum, Wakefield, and Trow, all remained at Oshkosh during all the afternoon of February 12, 1880, but that neither Ketchum nor his counsel said anything to said Mariner about opening said cause or examining said Trow or Ketchum; that had such request been made he would readily have consented; that Trow and Jackson then resided 100 miles from the place of trial, and Mariner at Milwaukee. Upon the hearing of the motion the same was denied, with costs, April 13, 1880, and an order entered accordingly. On Ketchum's appeal from that order, the same was affirmed by this court. 51 Wis. 164, and 7 N. W. Rep. 550. The bill which was verified May 15, 1882, further states that since the rendition of said personal judgment against Ketchum, and since the order of April 13, 1880, refusing to vacate and set aside the same, the said Henry Ketchum had discovered new and important evidence which was not known to him at the time of the rendition of said judgments, or the making of said order to the effect stated in the opinion; that said Henry Ketchum did not know until on or about March 14, 1882, that he could prove the facts set forth in the statements of the newly-discovered witnesses, Snell, Beatty, and M. M. Ketchum, sworn to by them respectively, March 14, 1882, and accompanying the bill, and that he first learned that they would so testify March 14, 1882; that prior to that date he did not know that any of said persons were present when the trade between him and Wakefield was made, or that any of them heard any conversation between him and Wakefield thereto; that he can prove by said Trow, in effect, as stated in Trow's affidavit and in the opinion of the court; that when he took Trow with him to Oshkosh, February 12, 1880, he did not talk with him in regard to the matter, as he had understood he was one of Breed's witnesses, but took him along, relying upon his telling the truth, and he accompanies the bill by Trow's affidavit, sworn to March 14, 1882. The bill further states, in effect, that Henry Ketchum never received a deed or conveyance of the Omro mill from Wakefield, through the post-office or otherwise, and never so informed Wakefield; that he was never able to procure the testimony of said Fortune, because he was in some remote mining region on the Pacific slope; that the trade between him and Wakefield was wholly made at Merrillan, Wisconsin; that the train was held there for some time to complete the same, and, when so completed, said Wakefield, Jackson, Trow, and Henry Ketchum went to Grand Rapids solely for the purpose of making the writings thereto, but that no part of said trade was made on the cars after leaving said Merrillan, or at Grand Rapids. The bill prays, in effect, that the judgment for deficiency against Henry Ketchum, and the order denying his application to set aside and vacate the same, be each reviewed and reversed, in consideration of the discovery of new matter as aforesaid. Leave was granted to file the bill April 13, 1882.

G. W. Cate and D. J Pulling, for appellant.

E. Mariner, for respondent.

CASSODAY, J.

All agree that in December, 1876, Wakefield and Henry Ketchum met, negotiated, and consummated an agreement to trade or exchange real estate. All agree that the witnesses Jackson and Trow were present when the agreement was consummated and the writings drawn. All agree that by the terms of the agreement Ketchum was to let Wakefield have his interest in certain mill property and pine lands at and near Merrillan, and receive in payment therefor Wakefield's interest in the Omro mill property, with the Breed mortgage of $5,000 upon it, and for the balance Wakefield's several notes...