Redhead v. Skidmore Land Credit Co.

• Decision Date: 08 November 1927
• Citation: 194 Wis. 123,215 N.W. 937
• Parties: REDHEAD v. SKIDMORE LAND CREDIT CO. ET AL.
• Court: Wisconsin Supreme Court

194 Wis. 123

215 N.W. 937

REDHEAD

v.SKIDMORE LAND CREDIT CO. ET AL.

Supreme Court of Wisconsin.

Nov. 8, 1927.

Appeal from a Judgment of the Circuit Court for Marinette County; Henry Graass, Judge Presiding.

Action by Hugh W. Redhead against the Skidmore Land Credit Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.--[By Editorial Staff.]

Reformation. The plaintiff conveyed to the defendant, by warranty deed, statutory form, “for the sum of one dollar and other valuable consideration,” a certain tract of land situated in Marinette county. After a description of the premises appears the following:

“Subject to certain mortgages aggregating $10,700.00 to the Farmers' Savings & Trust Company of Marinette, Marinette county, Wisconsin.”

The deed was dated April 20, 1920, and upon it were $17 in canceled revenue stamps. An action was brought to reform the deed by inserting therein the following clause immediately after the description of the mortgages: “Which the said grantee assumes and agrees to pay.”

The trial court found against the plaintiff's contention upon the facts, and judgment was entered accordingly dismissing the plaintiff's complaint, from which the plaintiff appeals.Nelson & Grimmer, of Marinette, for appellant.

P. A. Martineau, of Marinette, for respondents.

ROSENBERRY, J.

The judgment of dismissal is attacked on the ground that the undisputed evidence shows that the amount of incumbrances was deducted from the consideration; that under such circumstances there is an implied promise on the part of the purchaser, in the absence of an express agreement to the contrary, to assume the payment of the incumbrances. This contention presents a question of law. Other facts which might have some bearing upon the question are that the defendant, after the execution and delivery of the deed, paid the interest upon the mortgages; that no claim was made upon the plaintiff by the mortgagees or by the defendant with respect to the payment of such interest; that the land was sold for the agreed purchase price of $11 per acre; that the amount which should be paid to the plaintiff was determined by taking the value of the lands at $11 per acre, and deducting therefrom the amount of the mortgages which were not to mature until 1922. It further appears that the defendant company paid off a part of the matured mortgage held by the Iowa State Bank. It also appears that the deed as executed was drawn and prepared by the defendant company and forwarded to the plaintiff.

Plaintiff bases his contention upon the case of Heid v. Vreeland, 30 N. J. Eq. 591. In that case it was held:

“There can be no doubt at this day that where the purchaser of land incumbered by a mortgage, agrees to pay a particular sum as purchase money, and, on the execution of the contract of purchase, the amount of the mortgage is deducted from the consideration, and the land conveyed subject to the mortgage, that the purchaser is bound to pay the mortgage debt, whether he agreed to do so by express words or not. This obligation results necessarily from the very nature of the transaction. Having accepted the land subject to the mortgage, and kept back enough of the vendor's money to pay it, it is only common honesty that he should be required either to pay the mortgage or to stand primarily liable for it.”

See, also, Van Eman v. Mosing, annotated in L. R. A. 1917C, 590.

It is urged that the case of Brazeau v. McBride, 160 Wis. 204, 151 N. W. 253, supports this contention. In Brazeau v. McBride there was an express agreement to pay the...