Latton v. McCarty

• Decision Date: 15 March 1910
• Citation: 125 N.W. 430,142 Wis. 190
• Parties: LATTON v. MCCARTY ET AL.
• Court: Wisconsin Supreme Court

142 Wis. 190

125 N.W. 430

LATTON

v.MCCARTY ET AL.

Supreme Court of Wisconsin.

March 15, 1910.

Appeal from Circuit Court, Taylor County; John K. Parish, Judge.

Action by Arthur J. Latton against John McCarty and others. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

On October 10, 1898, Mike Wagoner and his wife executed a mortgage upon a certain parcel of real estate owned by him in the city of Medford, to secure a note for $250 signed by them in favor of Arthur J. Latton. On October 24, 1898, Mike Wagoner entered into a land contract with John McCarty, whereby, in consideration of $600, Wagoner agreed to give a warranty deed of these premises to McCarty when the purchase price was fully paid. McCarty paid $100 at the time of the execution of the contract, and agreed to assume payment of the $250 mortgage from Wagoner and his wife in favor of Latton; the balance of the purchase price, amounting to the sum of $250, was to be paid in quarter yearly installments of $30 each. On June 13, 1899, in consideration of $185, the sum still to be paid on the land contract exclusive of the mortgage, Wagoner assigned his interest in the land contract to Latton, and Wagoner and his wife executed a quitclaim deed of the premises in favor of Latton. By mutual agreement of Latton, Wagoner, and McCarty, Wagoner was released from liability on the note and mortgage, and McCarty assumed it. It was under the conditions of the deed from Wagoner and his wife to Latton that Wagoner was to be released from liability on the mortgage debt, and that Latton agreed to deliver a good deed to McCarty upon fulfillment of the conditions of the land contract. On March 19, 1902, upon payment by McCarty to Latton of a certain amount upon the land contract, Latton executed a warranty deed in favor of McCarty. Latton alleges in the complaint in this action that, at the time he gave McCarty this warranty deed, McCarty paid him $98.88 on the note and mortgage which he held against the premises; that it was agreed and understood that there was an unpaid balance on the note and mortgage amounting to $200; that the mortgage was not satisfied or discharged; that it was understood that it was unnecessary to make a new mortgage to secure this amount, and that the old mortgage could be continued under the parol agreement; and that McCarty agreed and promised to pay the balance it secured. The plaintiff brings this action to foreclose this mortgage. The defendant Catherine McCarty is the wife of John McCarty, Maggie Perry is a daughter and a purchaser of part of these premises, and Sherman Perry is Maggie Perry's husband. The defendant alleges full payment of the purchase money, and that the mortgage debt is fully paid and the mortgage discharged.

The court found that all the allegations of the complaint were true, and that Maggie Perry had notice of the mortgage lien when she purchased from McCarty. The facts found are that Wagoner and his wife made and executed and delivered the mortgage to the plaintiff to secure the note for $250; that Wagoner thereafter executed to John McCarty a land contract covering these premises, in consideration of $600 to be paid by McCarty; that McCarty agreed to pay, as part of the purchase money, the $250 note, which was secured by the mortgage and specified in the land contract; that Wagoner thereafter assigned his rights under the land contract to the plaintiff, Latton, and that Wagoner and his wife conveyed the premises to him by quitclaim deed, under an agreement of the parties and John McCarty that McCarty would pay the balance due on the contract and the $250 note to Latton; that thereafter, on March 19, 1902, Latton made, executed, and delivered to John McCarty a warranty deed of the premises, granting all his “estate, right, title, interest, claim or demand whatsoever,” either in law or equity, and covenanting that the same were clear and free from all incumbrances, and that it was verbally agreed that there was still due, on the mortgage and note of $250, the sum of $200, and that the mortgage securing it should be deemed to continue and remain in force to secure the payment of such $200 and interest. The court awarded judgment declaring that the mortgage was a subsisting one, and was in force as security for the payment of the $200; decreed foreclosure thereof and a sale of the premises upon the usual conditions; awarded a recovery of $25 as solicitor's fees; and ordered a judgment for a deficiency in case the proceeds on sale were not sufficient to defray the expense of sale and the amount due on the judgment. This is an appeal from the judgment.Schweppe & Urquhart, for appellants.

M. A. Buckley, for respondent.

SIEBECKER, J. (after stating the facts as above).

The evidence as to many of the facts stated above is undisputed. The findings of the court do not cover many of these undisputed facts. The main controverted and material issues of fact were whether or not the mortgage on the premises, securing payment of the $250 note, was discharged; whether or not a portion of the purchase money remained unpaid; and whether or not the defendant Maggie Perry had notice that a part of the purchase money which was due from McCarty remained unpaid at the time she purchased a part of the premises. These issues were embraced in the court's findings. It found that $200 of the purchase money remained unpaid at the time the plaintiff made, executed, and delivered a deed of the premises to the defendant John McCarty, that Maggie Perry had notice thereof before the conveyance of a part of the property to her on June 18, 1903, and that by parol agreement of plaintiff and McCarty the mortgage was to be continued as a security for the payment of this balance of the purchase money. Though the finding states this amount to be due upon the note and mortgage which were given by Wagoner and his wife before plaintiff became the owner of the premises, it also appears that the defendant John McCarty had purchased the...