Osipowicz v. Furland

• Decision Date: 30 April 1935
• Parties: OSIPOWICZ v. FURLAND ET AL.
• Court: Wisconsin Supreme Court

218 Wis. 568

260 N.W. 482

OSIPOWICZ

v.FURLAND ET AL.^a1

Supreme Court of Wisconsin.

April 30, 1935.

Appeals from judgments of the Circuit Court for Dane County; A. C. Hoppmann, Circuit Judge.

Action by John Osipowicz against Clarence M. Furland and others. From judgments granting plaintiff certain relief, plaintiff takes separate appeals.--[By Editorial Staff.]

Affirmed.

Action commenced by plaintiff for the strict foreclosure, on separate causes of action, of two land contracts, which were executed by defendants. Defendants, answering separately, admitted the making and delivery of the contracts, but denied that they were in default thereunder and, in connection with demanding the dismissal of the action, demanded that a deed which they had given to the plaintiff and the land contracts be adjudged to be a mortgage and first lien upon the land. Upon a trial, findings were made upon which the court entered judgment, which provided that under the deed and land contracts the relationship between the defendants and the plaintiff was that of mortgagors and mortgagee, and that the plaintiff was entitled to a mortgage foreclosure judgment for the amount due and owing to the plaintiff under the land contracts.

WICKHEM, J., dissenting.

Bagley, Spohn, Ross & Stevens, of Madison, for appellant.

Frank M. Wootton, H. Maxwell Manzer, and Hill, Beckwith & Harrington, all of Madison, for respondents.

FRITZ, Justice.

The judgments appealed from were in the form of mortgage foreclosure judgments because the court determined that, notwithstanding a conveyance and land contracts exchanged between the defendants and the plaintiff on September 2, 1930, the relationship between them is that of mortgagors and mortgagee, and the only assignment of error is that the court erred in making that determination. The facts necessarily involved in passing on that assignment of error are as follows: Prior to August 16, 1928, the defendants had purchased a lot (hereinafter called lot 15) from plaintiff and his wife on a land contract for $7,300, and had reduced the balance owing to $3,600. On that date plaintiff and his wife deeded that lot to defendants and loaned $400 to them, and they in turn gave to plaintiff and his wife a mortgage on that lot to secure $4,000, as the unpaid purchase price, and that $400 loan. On February 15, 1929, defendants purchased an adjoining lot, numbered 16, for $6,000, which they paid out of a loan from Joseph M. Boyd Company of $10,000, which was secured by a mortgage by defendants on lots 15 and 16. For the balance of that $10,000 loan, that company, in exchange for other securities, procured the release of plaintiff's mortgage on lot 15 for $4,000. On February 25, 1929, the Joseph M. Boyd Company assigned that $10,000 mortgage loan to plaintiff for $6,000 and the securities which he had received for the release of his $4,000 mortgage, but that company retained the right to interest on the $10,000 mortgage loan at the rate of one-half per cent. per annum, which was to be deducted from the interest payable thereon at the rate of 6 1/2 per cent. per annum. The defendants were to pay an installment of $600 on that mortgage loan on February 15, 1930, and on each February 15th thereafter until 1934, when the entire balance was to be due; and, in the event of default, all was to become due without notice. On February 15, 1930, they failed to pay the $600 installment then due, but did pay $300 thereof in March 1930. Thereafter the defendants, having requested a reduction in amount of the installments to be paid, and the plaintiff, as well as the defendants, desiring to avoid the one-half per cent. interest payment to the Boyd Company, entered into an arrangement under which, on September 2, 1930, (1) the defendants deeded lots 15 and 16 to the plaintiff; (2) the plaintiff and his wife gave land contracts to the defendants to reconvey to them lot 15 for $4,700, and lot 16 for $5,000, or a total of $9,700, which was the balance then owing to plaintiff on the $10,000 mortgage on those lots; and (3) the plaintiff executed a satisfaction of that mortgage and delivered it and the note secured thereby to defendants' attorney. Under those land contracts of September 2, 1930, interest was to be paid at the rate of 6 per cent. per annum; the monthly installments to be paid were $25 on each contract up to September 1, 1935, when the balance thereof was to become due. Defendants paid monthly installments aggregating $800 on the...