Merchants' & Mechanics' Sav. Bank v. Holdredge

• Decision Date: 11 April 1893
• Parties: MERCHANTS' & MECHANICS' SAV. BANK v. HOLDREDGE, (LOVEJOY, INTERVENER.)
• Court: Wisconsin Supreme Court

84 Wis. 601

55 N.W. 108

MERCHANTS' & MECHANICS' SAV. BANK

v.HOLDREDGE, (LOVEJOY, INTERVENER.)

Supreme Court of Wisconsin.

April 11, 1893.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by the Merchants' & Mechanics' Savings Bank against S. Holdredge, garnishee of J. L. Robinson, Sebastian S. Lovejoy, intervening claimant, and J. L. Robinson. Judgment, from which plaintiff appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

The appellant commenced an action against the defendant Robinson to recover the amount of three promissory notes, and at the same time summoned the defendant Holdredge, as garnishee of Robinson, to reach the proceeds of the sale of some tobacco from Robinson to Holdredge. The answer of the garnishee disclosed that the sum of $247.60 was due from him to Robinson for the tobacco, or whoever owned it; that he had been notified by S. S. Lovejoy that he claimed to own Robinson's interest in the tobacco under some contract or agreement; that he was ready and willing to pay the amount to whoever might be entitled to it, and he desired that question should be determined by the court. Under proper orders, the garnishee paid the money into court, and Lovejoy was made a party defendant in respect to his claim, and he appeared and litigated his right to the money with the plaintiff, when it appeared that the farm upon which the tobacco was raised had been conveyed November 7, 1887, by Robinson and wife, to the defendant S. S. Lovejoy, for the nominal sum of one dollar, subject to three mortgages thereon, one of which was to the said Lovejoy and A. P. Lovejoy, and on the same date a certain agreement was executed between the defendant Lovejoy and the defendant Robinson, by which it is stated that the former, in consideration of the payment of the money and the performance of the covenants therein specified as conditions precedent, agreed to sell to the latter the same lands for $3,685, in semiannual payments of $50 each, with interest at 8 per cent., payable annually. This agreement contained covenants by Robinson to pay all taxes thereafter assessed on the premises, and, in case of foreclosure, all the taxable costs and expenses thereof, and to keep the buildings on the premises insured for not less than $1,800,--policies to be made payable or assigned to Lovejoy as his interest might appear; and it was agreed “that the possession of, all and singular, the said premises agreed to be conveyed, shall be and remain in said party of the first part [Lovejoy] until the sum of $1,000 of the aforementioned principal sum of $3,685 shall be paid, together with all interest then due upon said principal sum, and until such time all crops raised upon said premises, or any part thereof, except such portion thereof as may be necessary to feed the stock on said premises belonging to the said party of the second part, [said Robinson,] and such as he may use for food in his family, which is to be apportioned and set apart by the parties acting mutually, when each crop, respectively, is in readiness therefor, shall belong to, and be the sole property of, the party of the first part; but said party of the first part is to apply the net proceeds arising from the sale thereof in part payment of said principal and interest payable to him as aforesaid, applying the same first to the payment of interest, and any excess of such proceeds above what shall be necessary to pay interest to be applied upon the principal; and said party of the second part agrees to farm said land in a husband-like manner for the party of the first part, and store all crops raised thereon for the party of the first part, on said premises, in due season.” It was further agreed that upon faithful performance by the party of the second part of his undertaking, and payment of principal, interest, and taxes, the party of the first part should and would execute to him a good and sufficient deed of said premises; that the payment of said purchase money when due was a material part of the agreement, and in case of any default therein the agreement was to be void, and all payments made thereon forfeited, and in case of any default in making payments of the principal sum, interest, or taxes, the party of the second part should forthwith deliver up the premises to the party of the first part. It was proved by Robinson that he had lived on the farm 15 years, and ever since he moved on it, and lived there when he deeded it to Lovejoy, and had worked the land under the contract, and raised the tobacco under it, and signed the contracts for its sale, and acted for him, with his sanction, in doing so. Lovejoy testified that Robinson had paid him nothing on the contract, aside from what he had received from the crops; that he had not received as much as $200 to apply on the principal; that he had a running account with Robinson, for things he had let him have, to come out of what he might pay, and he did not think the interest was hardly paid up to January 16, 1891, and that there had been no settlement between them since the making of the contract; that he had never personally sold anything raised on the farm; that the first object in taking the contract was to get their pay. Robinson did all the work, and furnished all the seed and tools. Being asked why the clause was put in the contract in relation to the title to the crops remaining in him, he answered, “So they would be mine, and so nobody could touch them but me.” Question: “Did you do it to secure you for the payment of this $1,000 principal?” Answer: “Perhaps it was security. I don't know. It was so that no one else could take hold of them, if he had any other debts. They might think they were his crops, and make some costs, without reason. I allowed him to take, out of the crops he raised, a sufficient amount to feed his stock he had on the premises, and a sufficient amount each year to take care of his family, and to pay his expenses. He has used all of the crops that I did not get. I have no account whatever of what he has used. All the account I have is what he has brought me, but he has not brought it all to me. I have allowed him to sell out of the crops, and buy other things with it. All I want or expect to get is $3,685, together with the interest. Of the several mortgages mentioned in the deed of Robinson to me, put in evidence, I was only interested in the last one,--the one to A. P. and S. S. Lovejoy.” Testimony was given to the effect that the land was worth from $20 to $30 an acre; Lovejoy testifying that he did not consider it worth any more than the amount stated in the contract; that he was unwilling longer to hold the mortgage; “thought we had got about as far as the land would hold; that it was about as much as we wanted to carry on it.” The said agreement was duly witnessed and acknowledged by both parties, but had not been recorded in the office of the register of deeds for Rock county, nor filed in the office of the proper town clerk. It appeared that the deed and agreement were given to secure a previous indebtedness against Robinson, the entire amount of which is stated in the agreement, and was included, it seems, in a former mortgage given by him on the farm. The plaintiff recovered in the action against Robinson, April 25, 1892, $194.79, damages and costs. The amount paid into court by the garnishee was $247.60. The court found that the tobacco was planted, cultivated, grown, harvested, stored, and kept upon said land for said Lovejoy under the contract, and that he was at all times, from the planting of said tobacco until the sale and delivery thereof to the garnishee, the owner of the tobacco; that Lovejoy authorized Robinson to sell it for his account, but not as the property of, or for the account of, Robinson; and that the indebtedness was due from the garnishee to Lovejoy, and not to Robinson; and that the defendant Lovejoy was entitled to have the money paid over by the clerk to him, (said Lovejoy;) and judgment was rendered accordingly, and for costs against the plaintiff, and discharging said Holdredge from liability for the money paid into court. The plaintiff took proper exceptions to the findings, and appealed from the judgment.Dinwiddie, Goldin & Wheeler, for appellant.

William Ruger, for respondents.

PINNEY, J., (after stating the facts.)

1. There can be no doubt but that the deed and agreement, which were clearly given to secure the debt of Robinson to Lovejoy, constituted a mortgage. It is settled that whenever...