Nelson v. McDonald

• Citation: 50 N.W. 893,80 Wis. 605
• Parties: NELSON v. MCDONALD ET AL.
• Decision Date: 15 December 1891
• Court: Wisconsin Supreme Court

80 Wis. 605

50 N.W. 893

NELSON

v.MCDONALD ET AL.

Supreme Court of Wisconsin.

Dec. 15, 1891.

Appeal from circuit court, Door county; SAMUEL D. HASTINGS, Judge.

Action by John F. Nelson against M. McDonald, Emily McDonald, his wife, and James Smith, to foreclose a real-estate mortgage. Judgment for plaintiff. Defendant Emily McDonald appeals. Affirmed.

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

Mortgage foreclosure. It appears by the testimony that Emily McDonald, the appellant, was the wife of the defendant M. McDonald. That she signed a joint and several note with her husband for $350, running to respondent; and also, upon her husband's request, signed and delivered to her husband a mortgage, which was blank as to description of property, upon his representation that the mortgage was to cover certain mill property belonging to him. In fact, however, the husband procured to be inserted in the mortgage the description of the family homestead, title to which was in the appellant, and he negotiated the note and mortgage to the plaintiff, who advanced the money thereon without notice of any fraud on the wife. The mortgage appeared to be in due form, and properly acknowledged, and there was nothing on the face of the note or mortgage to arouse suspicion. Appellant never received any of the proceeds of the loan. Upon default, this action was brought, and the circuit court found the facts substantially as above, and rendered judgment of foreclosure, with an order for personal judgment against both husband and wife in case of deficiency. From this judgment Emily McDonald appealed.O. E. & Y. V. Dreutzer, for appellant.

James Keogh, Jr., and Greene & Vroman, for respondent.

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

The case is hard, in that it imposes a lien upon the property of a confiding wife for which she has received nothing, but it is ruled by well-established legal principles. These principles are laid down notably in two decisions made by this court, viz., Harvester Co. v. McLean, 57 Wis. 258, 15 N. W. Rep. 177, and Van Etta v. Evenson, 28 Wis. 33. The substantial conclusion of these decisions is that authority may be given by parol to fill material blanks in a mortgage or other sealed instrument, as well as in negotiable paper, and that, when such authority is given, and the agent exceeds his instructions in filling the blanks, and negotiates the instrument with innocent third persons, the principal will be...