Kropp v. Kropp
| Decision Date | 28 September 1897 |
| Citation | 97 Wis. 137,72 N.W. 381 |
| Parties | KROPP v. KROPP ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.
Action by J. Christopher Kropp against Charles Kropp and others. Judgment for plaintiff. Defendants appeal. Modified.
Plaintiff was the owner of certain real estate in the city of Milwaukee. He sold such real estate to John Veidt upon terms that the purchaser should give a purchase-money mortgage for $5,225, and 50 shares of stock in the South Side Real Estate, Building & Loan Association, of the par value of $5 per share as a part of the consideration. The certificate of stock was transferred to plaintiff's wife, Christliebe Kropp. It was assigned directly to her, the proper transfer made on the books of the corporation, and a new certificate issued in her name, which was delivered to the plaintiff. The purchase-money mortgage and the notes representing the indebtedness secured thereby were also made out in the name of plaintiff's wife and delivered to plaintiff. The notes and mortgage were retained by plaintiff and all payments made thereon were made to him up to the time of the commencement of this action. On the 13th day of August, 1893, the wife died, leaving as her heirs two sons, being the defendants Charles and William Kropp. On the 10th day of September, 1895, Adolph Doctor was appointed administrator of the estate, and thereafter he claimed a right to the purchase money notes and mortgage and the certificate of stock mentioned, as belonging to the estate of his intestate. Thereupon plaintiff brought this action to reform the notes and mortgage, claiming that by mistake the person who made out the papers made them in the name of his wife; that the whole consideration for the real estate sold to Veidt belonged to him at the time of such sale and that it was the agreement and intention to have the papers so made that in case of his death during the lifetime of his wife the property would go to her without the expense of probating his estate, and in case of her death during his lifetime, the property would belong to him absolutely and without any probate proceedings; that he directed the notes and mortgage to be so made, but that by mistake they were made in the name of his wife alone. Defendants answered putting in issue the allegations of the complaint as to the agreement and mistake, and alleging that such papers were intentionally made to Mrs. Kropp as her own separate property and that they belonged to her at the time of her death. Defendants also counterclaimed, setting up that the corporation stock heretofore referred to was conveyed to Mrs. Kropp by direction of plaintiff; that it was a part of the transaction whereby the notes and mortgage were so made and that it was a part of the consideration for the sale of real estate heretofore mentioned; that the administrator demanded possession of the stock and of the notes and mortgage of plaintiff, and that such demand was refused. The prayer for affirmative relief in the answer, among other things, was that plaintiff be compelled to surrender the notes and mortgage and the stock to the defendant Doctor, as administrator of plaintiff's estate. Plaintiff replied, among other things, by a denial that the certificate of stock was assigned to his wife by his direction, and alleged that the certificate and the stock represented thereby belonged to him.
The trial resulted in a finding that plaintiff was the owner of the real estate at the time it was sold to Veidt, as alleged in the complaint; that it was sold to John Veidt as alleged, and purchase-money notes, with the mortgage to secure the same, for $5,225, together with 50 shares of capital stock in the South Side Real Estate, Building & Loan Association of Milwaukee, Wis., given in part payment therefor; that by mistake and inadvertence a clerical error was made by the persons who drafted and prepared the instruments, by which, without the knowledge or consent of plaintiff, the name of his wife, Christliebe Kropp, was inserted in the certificate of stock and in the notes and mortgage as the sole owner, when the intention of all the parties interested, at the time of the execution of the notes and mortgage and the assignment of stock, was that the papers should be, and all such parties believed that they were, made payable to plaintiff and his wife as such, and to the survivor of them, so that the property would belong solely to the wife, only in the event of plaintiff dying in her lifetime, and solely to plaintiff in case of her death during his lifetime, the object being to avoid the expense of probating the estate of plaintiff in case of the wife surviving. There were further findings of fact covering all the issues raised by the pleadings. As conclusions of law the court found that the claim of the defendants in respect to the ownership of the notes and mortgage and the certificate of stock was a cloud upon his title thereto, and that plaintiff was entitled to the relief prayed for in the complaint, and to a decree establishing his ownership of the notes and mortgage and the certificate of stock, free from any claim of the defendants, and reforming the instruments by adding the name of the plaintiff to the name of Christliebe Kropp, wherever the name appears in such instruments, or either of them, and by otherwise reforming the same so as to make them by their terms the property of J. Christopher Kropp and said Christliebe Kropp as husband and wife, or the surviving one of them, and so as to make the same conform to the intention of the parties as the court found the facts to be, and the defendants deliver all of such property to the plaintiff, and all sums or amounts received or collected thereon. Defendants filed exceptions to the findings of fact and conclusions of law, and thereafter judgment was rendered in plaintiff's favor, from which defendants appealed.V. W. Seely, for appellants.
Fiebing & Killilea, for respondent.
MARSHALL, J. (after stating the facts).
If, as alleged in the pleadings by respondent and found by the court, respondent sold real estate belonging to him to another and received from such other, in part payment therefor, purchase-money notes and mortgage and some corporation stock, and it was agreed between such other and respondent and his wife, that the notes and mortgage and the transfer of the stock and new certificate therefor should be so made as to vest the title thereto in the husband and wife jointly, and in the survivor of them without any expense for probate proceedings, and thereafter, by mistake of fact on the part of all the parties named, and of the person or persons who drew the papers, they were made to show Mrs. Kropp to be the sole owner of the property, then, unless plaintiff be barred from obtaining relief by laches, his right thereto in equity, by a decree reforming the notes, mortgage and certificate to accord with the facts, is too clear for serious discussion. Within one of the well-recognized and firmly-established...
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