Moore v. Benjamin

• Decision Date: 21 June 1938
• Citation: 228 Wis. 591,280 N.W. 340
• Parties: MOORE v. BENJAMIN.
• Court: Wisconsin Supreme Court

228 Wis. 591

280 N.W. 340

MOORE

v.BENJAMIN.

Supreme Court of Wisconsin.

June 21, 1938.

Appeal from a judgment of the County Court of Walworth County; Roscoe R. Luce, Judge.

Affirmed.

Action in ejectment, commenced April 25, 1936, by Mrs. Louie H. Moore against Monica M. Benjamin and James H. Benjamin, to recover the possession of premises situate in the town of Delavan, county of Walworth.

Neither Monica Benjamin nor James Benjamin answered the complaint. The court took proofs as upon a default, but permitted the defendants to be heard and to examine witnesses. Thereupon the court made findings to the effect that the ejectment action had been properly commenced; that the defendants had entered an appearance but had not answered; that there had been several continuances which delayed the proceedings over a very considerable time; that the defendants had executed a deed of trust to the Marshall & Ilsley Bank, which in turn conveyed to Louie H. Moore; that this deed was in pursuance of a contract to accept a conveyance in payment of the mortgage debt; that the defendants were fully advised when they made this deed; that they understood they were giving an absolute deed in satisfaction of the debt and not as security for its payment; that the defendants were given an option to repurchase, which they failed to exercise; that no advantage was taken of the circumstances of the defendants. Upon these facts, the court concluded that Mrs. Louie H. Moore was entitled to possession of the premises. From a judgment accordingly entered, Monica M. Benjamin appeals.

Willis E. Donley, of Menomonie, and Frank E. McAllister, of Chicago, Ill., for appellant.

Lyman K. Arnold, Robert K. Cullen, and Arthur T. Thorson, all of Elkhorn (Alfred L. Godfrey, of Elkhorn, of counsel), for respondent.

FAIRCHILD, Justice.

The appellant raises a number of questions, but the controversy revolves about the ruling that James and Monica Benjamin were in default. We are of the opinion that the court ruled correctly. On sufficient evidence, it was convinced that the defendants were endeavoring to use the legal process to secure delays.

In 1929 Monica Benjamin purchased a summer home for 48,500. She was unable to pay the full amount of the purchase price at that time, and gave a mortgage dated September 21, 1929, to secure the unpaid balance of $28,500. In February, 1932, foreclosure proceedings were begun. Mrs. Benjamin then paid $1,300 to apply on defaults, and in April of that year an extension agreement was entered into, as a result of which that foreclosure action was dismissed.

In November of 1933 a new foreclosure action was brought against Monica Benjamin. She appeared by attorneys and in her answer alleged as a defense that at the time of the purchase by her it had been falsely represented, by way of inducement, that the property had cost the seller $60,000 and that the building and appurtenances were in excellent condition, that she “believed and relied upon and was thereby induced to purchase said real estate, to pay the said sum of $20,000 on said purchase price and to execute the said notes and mortgage for the sum of $28,500.” She took the position that the property as represented would have been worth the amount she paid for it, but that because of the alleged poor repair it was worth not to exceed $20,000. In her answer she also set up a counterclaim for damages, based upon the condition just described, and prayed for judgment in her favor for $47,450.

When this case came on for trial, there was a stipulation of the parties, made in open court, under which the court ordered and adjudged a foreclosure of the mortgage. Judgment was dated the 20th of June, 1934. Thereafter and in the month of February, 1935, Monica Benjamin filed a petition in a United States district court in the state of Illinois, asking permission to effect a composition with creditors or an extension of time to pay her debts under sec. 74 of the Bankruptcy Act, 11 U.S.C.A. § 202, and in this petition alleged that she was unable to meet her maturing debts. In the schedule of liabilities which she filed with the petition she included her liability on account of the mortgage. The district court denied the petition...