Portz v. Schantz

• Decision Date: 31 January 1888
• Citation: 70 Wis. 497,36 N.W. 249
• Parties: PORTZ v. SCHANTZ.
• Court: Wisconsin Supreme Court

70 Wis. 497

36 N.W. 249

PORTZ

v.SCHANTZ.

Supreme Court of Wisconsin.

January 31, 1888.

Appeal from circuit court, Washington county; A. SCOTT SLOAN, Judge.

This action was commenced June 12, 1886, to foreclose a mortgage executed by the said George Schantz and his wife, since deceased, given to secure a note executed and delivered by them to one Joseph Schantz on or about June 20, 1864, for $130, with interest annually at 7 per cent. per annum, due two years after that date, upon the lands described. The answer in effect denied that the note and mortgage had ever been assigned to the plaintiff, or that he was the owner, and alleged that the note had been fully paid and satisfied by the defendant before the commencement of the action; that the cause of action did not accrue upon the note within six years before the commencement of this action; that the cause of action upon the mortgage did not accrue within twenty years before the commencement of this action; and, by way of counterclaim, alleged that there was due him $234 for services rendered by the said George Schantz to his father, the said Joseph Schantz, during the time he owned the note and mortgage, between July 1, 1866, and June 12, 1870, and to be applied thereon as payment and an equitable set-off; that said Joseph died June 11, 1870, without ever having sold or transferred said note and mortgage; and demanded that the same be adjudged paid and discharged of record.

Upon the trial, the court found as matters of fact, in effect, (1) that June 20, 1864, George (and his wife, since deceased) executed and delivered to said Joseph said note and mortgage, (2) upon the lands described; (3) that the plaintiff was the lawful owner and holder of said note and mortgage at the commencement of this action, and continued to be such; (4) that the cause of action upon the note did not accrue within six years before the commencement of this action; (5) that the cause of action upon the mortgage herein did accrue within twenty years before the time of this action; (6) that the mortgagee, Joseph, died without making any assignment thereof; (7) that George, at the special instance and request of Joseph, and while he was the owner and holder of said note and mortgage, and in part payment thereof, performed work, labor, and services for him, reasonably worth $2.50 per day, in the three summers of 1866-68, respectively, to the amount in each of $36, and that that amount should be credited thereon as payments, as of the first of August in each of said three years; (8) that, August 1, 1867, George paid Joseph $30 in cash on said note and mortgage; (9) that there was still due and unpaid thereon $53.27; (10) that the mortgaged premises were a homestead, and could not be sold separately, in parcels, without prejudice to the interest of the parties; (11) that the allegations of the complaint were true, except as to the allegation of non-payment. As conclusions of law, the court found (1) that the plaintiff was the lawful owner and holder of the mortgage; (2) that he was the proper party plaintiff, and that the action should not abate; (3) that the cause of action upon the mortgage accrued within twenty years before the commencement of this action; (4) that the cause of action upon the note did not accrue within six years before the commencement of this action; (5) that there was due and unpaid upon the mortgage $53.27; (6) that the plaintiff was entitled to judgment of foreclosure and sale for that amount, with the plaintiff's disbursements, to be taxed, but with no other taxable costs or solicitor's fees; and judgment was directed and entered accordingly. The plaintiff appeals from those parts of the judgment disallowing more than the amount stated, and disallowing attorney's and solicitor's fees; and the defendant appeals from the whole judgment.

H. K. Butterfield, for plaintiff.

H. W. Sawyer, for defendant.

CASSODAY, J., ( after stating the facts as above.)

The certificate of acknowledgment of the mortgage appears upon its face to have been executed on the day found by the court, and which was the same as the date of the note. Such certificate was, at least, presumptive evidence that the note and mortgage were executed and delivered at that time. Smith v. Allis, 52 Wis. 337, 9 N. W. Rep. 155;Pereau v. Frederick, (Iowa,) 22 N. W. Rep. 235. The cancellation of the stamp bears the same date. These support the finding upon this fact, and no exception is taken thereto. The mere fact that an earlier date appears at the commencement of the mortgage is immaterial, and constitutes no variance; especially as the complaint nowhere refers to the date of the mortgage as descriptive.

It is said that the plaintiff failed to prove title to the note and mortgage. He claims such title under and by virtue of the following papers, proceedings, and transfers in the record, and undisputed: April 18, 1868, the mortgagee, Joseph Schantz, made his last will and testament, wherein he gave all his property to his wife, Anna Maria Schantz, also named therein as sole executrix; subject, however, to the payment of his debts, funeral expenses, and a legacy of $500 to a daughter. June 11, 1870, Joseph Schantz died, without having surrendered or assigned the note and mortgage. November 26, 1870, the will was filed with the probate judge. May 8, 1871, the requisite petition of Adam Schantz for the probate thereof was filed in the probate court. Thereupon, and on May 8, 1871, it was in effect ordered by said probate judge that proof of said instrument, and all other matters pertaining to the granting of administration of said estate, be heard before him May 31, 1871, at 11 o'clock A. M., and it was thereby further ordered that notice thereof be given to all persons interested, by the publishing of a copy of said order for three weeks, successively, prior to said day of hearing, in a weekly newspaper named. The affidavit of the printer of said newspaper, sworn to, and filed with said probate judge May 31, 1871, was to the effect that said order had been “published in said newspaper for ______ successive weeks, commencing on the ninth day of May, 1871.” May 31, 1871, such hearing was had, and thereupon it was ordered and adjudged that said will be, and the same was thereby, admitted to probate, and the said Adam Schantz appointed administrator of said estate upon giving the requisite bond; and allowing six months to creditors to present and prove their claims against the estate, and one year for the payment of debts and legacies and the settlement of the estate, with other directions usually contained in such order. That order recited, among other things, that it was made pursuant to the order of May 8, 1871, and the affidavit “showing that the notice required by said order to be given” had “been duly published as ordered, being filed.” Upon the same day, the administrator gave his bond, and qualified, and letters of...