Rhyner v. Hartl

• Decision Date: 10 February 1942
• Citation: 239 Wis. 589,2 N.W.2d 248
• Parties: RHYNER v. HARTL.
• Court: Wisconsin Supreme Court

239 Wis. 589

2 N.W.2d 248

RHYNER

v.HARTL.

Supreme Court of Wisconsin.

Feb. 10, 1942.

Appeal from a judgment of the Circuit Court for Wood County; H. J. Severson, Judge.

Reversed.

FOWLER, J., dissenting.Action begun February 20, 1939, by Fred A. Rhyner, as administrator of the estate of Robert Connor, deceased, against L. A. Hartl for an accounting. John L. Sauber was impleaded. Judgment was for plaintiff against Hartl. Hartl appeals.

The complaint shows that at the time of his death Robert Connor was indebted to the American National Bank of Marshfield upon a judgment in the sum of $5,574.71 with interest and to the First National Bank of Stevens Pointin the sum of $5,357.80. That he was the owner of a one-third interest in certain timber holdings, the balance being held one-third by the First National Bank of Marshfield and one-third by W. D. Connor, Jr., and others. That the real estate was subject to a judgment lien for $3,424.22, principal, interest and costs, in favor of the Stratford State Bank. That the lien was a prior lien. That defendant Hartl acquired by assignment from the Stratford Bank its judgment. That Hartl and the First National Bank of Stevens Point purchased the interest of said deceased Robert Connor in the real estate for the sum of $6,000. It is further alleged that plaintiff was induced to believe that the premises were unsalable and that the deceased's interest was of no greater value than $6,000. That Hartl well knew the character and value of the property and that it was reasonably worth substantially more than $6,000. That plaintiff relied upon the statements and representations made and believed them to be true. That he accepted the offer and filed a petition in the county court for an order authorizing him as administrator to sell and transfer the title of said deceased in said premises free and clear of the lien of the prior judgment of the Stratford State Bank and outstanding taxes. That an order was granted authorizing a deed from plaintiff to Hartl and J. W. Dunegan as trustees upon condition that there be paid to plaintiff $6,000 in cash and directing plaintiff to pay to the First National Bank of Stevens Point $384.64 to reimburse said bank for taxes redeemed by it and also to pay the sum of $4,109.24 with interest in redemption of said premises under the execution sale upon the judgment in favor of the Stratford State Bank and to hold the balance subject to the further order of the court. It is further alleged that the real estate was later sold in connection with the other two one-third interests for such a price that defendant Hartl received $8,229.41 for his share and that he refuses to apply the same upon the claim against the Connor estate of the American National Bank for whom it is alleged he was acting as trustee. That Hartl claims title to the undivided one-half interest in the decedent's one-third interest in said premises as having been conveyed to him individually by said administrator's deed.

The defendant Hartl denies having made any representations or statements of the character complained of and denies that he purchased the Stratford Bank judgment and entered into the agreement to purchase decedent's one-third interest on behalf of the American National Bank.

The plaintiff testified on direct examination concerning the meeting at which the original purchase was agreed upon as follows:

“* * * None of the men at the conference stated that they were familiar with the property, nor did it appear that they had made any investigation or cruise. While I was there there was no discussion of the quantity of merchantable timber on the land. Mr. Fisher (plaintiff's attorney) and I had discussed it privately. Mr. Fisher advised me that we had about 30 days to dispose of the property or lose the entire equity of the estate. I figured $6,000.00 was a reasonable value of the property. Certificate of sale had been issued on this property as a result of the execution of the Stratford State Bank judgment and the statutory period of time would have expired within 30 days or by the end of the year. There were some outstanding taxes and tax certificates that would soon be deedable. I was not advised that Mr. Hartl held the sheriff's certificate of sale. I believed that there was danger of the title of the estate being lost under the certificate of sale. Neither Hartl or Dunegan made any statements as to what their opinion was as to the value of the one third interest. I had nothing to do with preparing the papers and I signed the contract * * along with Dunegan as trustee and Hartl as trustee and Mr. Fisher took care of the court proceedings. Mr. Fordyce who was there was a representative of the American National Bank, a creditor of the Connor Estate. * * *”

Mr. Fisher gave this testimony as to the meeting:

“* * * The Stratford Bank had the certificate of sale amounting to over $4,000.00. There were taxes, and a tax deed would have been taken before this if I had not prevailed upon Mr. Dunegan to pay the taxes. I was handling the business for the closed First National Bank of Marshfield and they had a one-third interest. That is how I knew about the property. Mr. Genrich of Wausau had been handling the business for the Stratford Bank. The sale on execution had been made on November 26, 1935. I had an arrangement with Genrich, he wanted me to buy the certificate and I was watching it. In the summer of 1936 I saw that the land was cruised to determine what the value was and about that time I had a letter from Mr. Peters, the receiver of the First National Bank of Marshfield, regarding the fire hazard. So in the summer of 1936 I started proceedings to be in a position to protect the property against loss by virtue of the certificate of sale. I first learned that Mr. Hartl had an assignment of the certificate of sale from Mr. Genrich. That was the latter part of October or first part of November, 1936. I had been holding off having my people buy during the summer, in view of the fire hazards. After I learned that Hartl had the certificate, I talked to Dunegan of the Stevens Point Bank and we decided to arrange a meeting to see if we could agree on something to protect my clients, the First National Bank, and the estate, against this outstanding certificate. I went to Marshfield to see if we could make some mutual satisfactory arrangement as a first choice, and as a second choice to buy the certificate, and the third choice would be to redeem it and have my bank, the Stevens Point Bank, advance the money to redeem the property from that sale. We had a conference at Marshfield. That was the meeting Mr. Rhyner testified about. I think Dunegan and I were in the other bank first and arranged to meet in the closed bank. Hartl, Peters, Fordyce, Rhyner and I were present at the First National Bank of Marshfield. Before going over there I think I talked to Mr. Fordyce. I don't know if Hartl was there then. Fordyce was a receiver of the American National Bank, which owned a judgment. We wanted to contact Hartl, as I was not sure I knew him personally. I think he was in the bankthere for a few minutes. We did not want the owners of that certificate to take the title away. I am not sure whether we talked to Hartl then or made an appointment over the phone to meet us at the other conference. I think Hartl was at the bank when Fordyce and Dunegan were there, but I am not sure. We discussed the question of going together and purchasing the property together.”

A number of other witnesses testified concerning the meeting but the foregoing...