Neeves v. Boos

• Decision Date: 07 November 1893
• Citation: 86 Wis. 313,56 N.W. 909
• Parties: NEEVES v. BOOS ET AL.
• Court: Wisconsin Supreme Court

86 Wis. 313

56 N.W. 909

NEEVES

v.BOOS ET AL.

Supreme Court of Wisconsin.

Nov. 7, 1893.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by William B. Neeves against Imre Boos and the Commercial Bank of Milwaukee, impleaded with Henry Edson Gregory, to recover damages for alleged false representations of defendant Gregory about land sold by him to plaintiff, and for the appointment of a receiver to take charge of the notes given in payment for the land, and a mortgage thereon. A receiver was appointed as prayed, and from an order directing the receiver to foreclose the mortgage if plaintiff failed within 20 days to pay money due thereon, plaintiff and defendant Gregory appeal. Affirmed.

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

It appears from the pleadings in this action that the plaintiff, on the 29th of September, 1890, purchased of the defendant Gregory a large number of lots in Hyde Park, in the town of Wauwatosa, near the city of Milwaukee, for $30,000, and received a warranty deed of them, and for the unpaid portion of the purchase money he executed to the defendant Gregory his five promissory notes in the aggregate of $22,500, secured by a mortgage on the same premises, and payable, with interest, at various periods. The first note was paid January 1, 1892, and a second one matured January 1, 1893, as well as the annual interest on $18,500, on the 1st day of October, 1892, which note and said interest remain unpaid. The plaintiff, in his complaint, states that the defendant Gregory claims to be the owner of the notes and mortgage, and that the defendants Imre Boos and the Commercial Bank also claim the same, and the said bank has possession of them, indorsed in blank by said Gregory, by one Luscomb as his agent; that Gregory has forbidden him to make payment of the same to any other person than himself, except so much as might be necessary to extinguish a debt of one Luscomb of about $7,000, for security of payment of which to one Levinson said notes had been hypothecated; that Boos and the Commercial Bank had knowledge that said notes belonged, subject as aforesaid, to said Gregory; that Gregory claims payment of the notes, and so also do Boos and the said bank, and the plaintiff claims that, on account of the conflicting claims of the parties, he fears they will be transferred by either Boos or the bank to some bona fide purchaser without notice of the claims of the respective parties. The plaintiff claimed damages by reason of certain false representations made to him at the time of the sale by Gregory, to the effect that certain streets marked on the plat of said premises, and staked out, had been dedicated to public use as streets throughout their entire length and breadth as thus indicated; that six certain lots had been graded as and for a street, and dedicated by the said Gregory for that purpose, subject only to a right of way of a certain motor company for the purpose of operating its railway and maintaining its track or tracks, and this way over the lots furnished the only practical means of access to and egress from the premises so purchased by him of said Gregory; that in violation of such representations, and in fraud of the plaintiff's rights, he conveyed said lots to said motor company in fee, excepting no easement over the same to the plaintiff or the public, and the motor company refused to recognize any such easement, and excluded the plaintiff from passage over said lots, whereby he was obliged to purchase said lots from said motor company at an expense of $3,000, and was in all damaged by reason of the premises in the sum of $5,000, and he claimed an abatement or deduction from said notes and mortgage of that sum, and alleged that Gregory was not a resident of the state of Wisconsin, but it was not claimed that he was insolvent. The plaintiff asked judgment for the appointment of a receiver of the notes and mortgage, with power to receive payments thereon according to the terms thereof, and with power generally to carry out and effectuate the terms of the mortgage on...