Muender v. Muender

• Decision Date: 15 January 1924
• Citation: 182 Wis. 417,196 N.W. 773
• Parties: MUENDER v. MUENDER.
• Court: Wisconsin Supreme Court

182 Wis. 417

196 N.W. 773

MUENDER

v.MUENDER.

Supreme Court of Wisconsin.

Jan. 15, 1924.

Appeal from Grant County Court; E. B. Goodsell, Judge.

Action by Ella B. Muender against Ida A. Muender, administratrix. Judgment for plaintiff, and defendant appeals. Affirmed.

In 1913, George H. Muender purchased 312 acres of land in Grant county, Wis., for $18,700, giving as a part of the consideration for the farm a mortgage for $12,000, taking the title in his own name. Fred Muender entered into an arrangement with George Muender, by the terms of which George Muender was to stock the farm and furnish the necessary machinery. Fred Muender was to keep up the taxes, pay the interest on the investment, and if the farm should be sold at a profit, the profits were to be equally divided after the money advanced by George Muender had been repaid. Fred Muender was to have a one-half interest in the increase of the stock and to be charged with one-half of the original cost in the settlement. There was a bad year. Money was advanced by George to Fred for living expenses. The farm was sold in 1920 to one Andrew Browning, for the sum of $39,300. Property to the value of $7,300 was accepted on the purchase price, and the remaining $32,000 was to be paid in cash according to the terms of a land contract. On the 17th of January, 1921, a settlement was had between the brothers at the Citizens' State Bank at Montfort. In the meantime, Ella B. Muender, then the wife of Fred C. Muender, had advanced to her husband from moneys constituting her separate estate a sum approximating or exceeding $5,000. A settlement was had by which it was agreed that the liability of Fred C. Muender to his wife should be satisfied by the execution to her of a note by George H. Muender for the sum of $5,000. One David James was requested to prepare a note. In response to that request, Mr. James prepared Exhibit A, which was executed by George H. Muender and delivered to Ella B. Muender, as follows:

+-----------------------------------------+
                ¦“5,000.00.¦Montfort, Wis., Jan. 17, 1921.¦
                +-----------------------------------------+
                

On or before five years after date, we or either of us promise to pay to the order of Ella B. Muender at Citizens' State Bank, Montfort,Wisconsin, five thousand dollars, value received, with interest at 5 1/2 per cent. per annum, payable annually March 1st, beginning March 1st, 1922. Principal and interest past due to draw same rate of interest. The makers and indorsers severally waive presentment of payment, demand, protest, notice of protest and nonpayment of this note, and further agree to pay all costs and attorney's fee, including all expenses, should this note be placed in the hands of an attorney for collection, and sureties agree to waive any extension of time without notice; also hereby authorize any attorney of any court of record, to appear for us or either of them in such court in term time or vacation, at any time hereafter and confess a judgment, without process, in favor of the holder of this note, for such amount as may appear to be unpaid thereon, whether due or not, together with costs and consent to immediate execution upon such judgment, hereby ratifying and confirming all that my said attorney may do by virtue hereof. In case of nonpayment of the principal or any part thereof or the interest, when due, the whole amount becomes due and payable at once.

This note represents the equity of payee in a land contract between Geo. H. Muender and Andrew Browning and wife for north half of section 3, town of Ellenboro, Wis., dated ______, 1920, and is to be paid out of the first payments on the principal of said contract.

If contract is renewed, note is to be renewed. Due ______ No. ______

George H. Muender.”

George H. Muender died on the 10th day of November, 1921. His estate was duly administered, and the note was filed by Ella B. Muender as a claim against his estate. The Brownings failed to comply with the terms of the land contract, and on the 20th day of September, 1922, an action for the foreclosure thereof was begun by...