Meinhold v. Walters

• Decision Date: 14 March 1899
• Citation: 102 Wis. 389,78 N.W. 574
• Parties: MEINHOLD v. WALTERS ET AL.
• Court: Wisconsin Supreme Court

102 Wis. 389

78 N.W. 574

MEINHOLD

v.WALTERS ET AL.

Supreme Court of Wisconsin.

March 14, 1899.

Appeal from circuit court, Clark county; W. F. Bailey, Judge.

Action by Abraham Meinhold against John C. Walters and others. From a judgment for plaintiff, John C. Walters and other defendants appeal. Affirmed.J. R. Sturdevant & Son and Charles F. Grow, for appellants.

McCausland & Smith and M. C. Ring, for respondent.

CASSODAY, C. J.

This is an appeal from a judgment of foreclosure and sale in an action commenced April 13, 1895, to foreclose a mortgage bearing date September 8, 1873, executed by A. W. Raymond and wife to J. C. Gwin & Co., to secure $800, and which mortgage was assigned to the plaintiff October 10, 1874. Issue being joined and trial had, the parties stipulated the facts or the court found them to be, in effect, that May 18, 1869, one A. W. Raymond, the mortgagor, made application to enter the lands described as a homestead, pursuant to the acts of congress then in force; that March 6, 1871, he made, executed, and delivered to one Stafford a quitclaim deed of all the pine timber on the lands described, and that deed was recorded March 7, 1871; that March 27, 1873, the final receiver's certificate or receipt was issued to A. W. Raymond for such lands, and which receipt was recorded October 23, 1873; that March 22, 1875, such certificate or receipt was set aside and declared void by the commissioner of the general land office of the United States; that April 27, 1875, another receiver's certificate or final receipt was issued to him in lieu of the one so set aside, and the same was duly recorded May 10, 1875; that May 7, 1875, the mortgagor and wife, for a valuable consideration, conveyed a part of the lands described to J. C. Gwin & Co., by warranty deed, which was duly recorded May 10, 1875; that May 7, 1875, that firm conveyed the pine timber on another part of the land described to Huntzicker by quitclaim deed, which was recorded June 2, 1875; that the members of the firm and their wives also conveyed the lands, excepting the pine timber, to Huntzicker, by warranty deed, May 29, 1875, which was duly recorded, June 2, 1875; that July 30, 1875, a patent was issued by the United States to A. W. Raymond, covering the lands described; that subsequently the defendants, respectively, acquired some right, title, or interest in such lands or some portion thereof, so as to be properly made defendants herein; that there is no evidence that J. C. Gwin & Co. or the plaintiff had any knowledge of the execution and delivery of the quitclaim deed of March 6, 1871; that, at the time the mortgage was executed and delivered, J. C. Gwin & Co. had no knowledge of any infirmity or alleged infirmity in the title to the lands described;that, at the time the mortgage was signed, the plaintiff herein had no knowledge of any infirmity in the title; that J. C. Gwin & Co. took the mortgage in good faith and for a valuable consideration; that the plaintiff was a purchaser for a valuable consideration, in good faith, of the note and mortgage; that A. W. Raymond was enlisted in the service of the United States as a soldier of the war of the Rebellion between 1861 and 1865; that all of the allegations of the complaint and reply are true; that all of the allegations of the answers and counterclaim are untrue; that there was due at the date of the findings $1,455.78; also $50 as solicitor's fee which was therein determined to be a reasonable fee in such a case. As conclusions of law, the court found, in effect, that the plaintiff was entitled to the usual judgment of foreclosure and sale; and, from the judgment entered thereon accordingly, three of the defendants bring this appeal.

The only question presented in this case is whether the mortgage is valid, as against the mortgagor and those claiming under him, or void, because it was executed prior to the time when the mortgagor obtained his patent. The question must be resolved according to the federal statutes as construed by the supreme court of the United States. Paige v. Peters, 70 Wis. 182, 35 N. W. 328;Wisconsin Cent. R. Co. v. Wisconsin River Land Co., 71 Wis. 99, 36 N. W. 837;Whitney v. Lumber Co., 78 Wis. 246, ...