Scheiber v. Le Claire

• Decision Date: 12 October 1886
• Citation: 66 Wis. 579,29 N.W. 570
• Parties: SCHEIBER v. LE CLAIRE, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

66 Wis. 579

29 N.W. 570

SCHEIBER

v.LE CLAIRE, IMPLEADED, ETC.

Supreme Court of Wisconsin.

October 12, 1886.

Appeal from circuit court, Brown county.

This action is for the strict foreclosure of two land contracts set forth in the complaint, each of which recited a consideration of one dollar, and named the plaintiff as the “party of the first part,” and the defendant, Joseph Le Claire, as “party of the second part.” The contract constituting the first cause of action is dated October 26, 1882, and is to the effect that the plaintiff, on the payment to him, one year from the date thereof, of the sum of $2,849.33, and also the further sum of $2,451.99, agreed to convey to the said defendant all of the land therein described, by good and sufficient deed; that, in case the defendant so elected, he might and should have the right, at the end of one year, to pay the above sum of $2,849.33 in cash, and give for the above sum of $2,451.99 a note bearing interest at 8 per cent., payable in one year, secured by a mortgage on all of said lands; that in case said defendant should not see fit, at the expiration of one year, to make the payments as above set forth, then, in that case, the plaintiff agreed to convey to him, by good and sufficient deed, an equal undivided two-thirds of all of said lands, upon the delivery to him of defendant's note for $2,451.99, with interest at 8 per cent., payable in one year, secured by a mortgage on the two-thirds interest in said lands so conveyed to him; that the defendant thereby agreed and bound himself to pay the taxes on said lands for the year 1882, if any there be, and also to perform all the conditions on his part to be performed, and at the times and in the manner therein set forth. A description of the lands is then given, and the contract made binding upon the heirs, executors, administrators, and assigns of the respective parties, and signed by them. The contract constituting the second cause of action bears date November 6, 1882, and is in all respects like the first, except it relates to different lands; and the amount which the defendant had the option of paying to the plaintiff within a year for one-third of the land was $1,848, and the amount which he was to pay to the plaintiff at the end of the year in cash, or give his note to him for, due in one year, with 8 per cent. interest, secured by a mortgage upon the equal undivided two-thirds of the lands therein agreed to be conveyed to him by the plaintiff, was $1,456.50. The complaint alleged the breach of each contract on the part of the defendant by failure to pay principal, interest, and taxes.

The answer substantially admits the several allegations of the complaint, and alleges by way of counter-claims, in effect, that the transaction resulting in giving the first contract was an equitable mortgage to secure to the plaintiff the repayment of the $2,451.99, advanced by him in obtaining title to the land described in that contract, and interest and one-third of the land for the use of his money; that the transaction resulting in giving the second contract was an equitable mortgage to secure the plaintiff the repayment of the $1,456.50 advanced by him in obtaining the title to the land described in that contract, and interest and one-third of the land for the use of his money; that in each case the transaction was usurious; that the plaintiff had received a large payment on the debt through the sale of collaterals; that the defendant, with the knowledge and consent of the plaintiff, removed from said lands 900,000 feet of pine timber, board measure, the stumpage value of which was two dollars per thousand feet; that the defendant had, since June 30, 1885, offered to perform and tendered performance on the theory of equitable mortgages, and prayed judgment accordingly.

The plaintiff, replying to said counter-claims respectively, admitted some of the facts alleged, and denied others, and alleged that a part of the moneys received through the sale of collaterals was to apply on taxes which the defendant agreed to pay, but which were in fact paid by the plaintiff.

The court made findings upon the several issues, and, among other things, ordered judgment of strict foreclosure, unless the defendant paid the plaintiff $3,994.06 as the balance due, with interest from January 25, 1886, within 30 days from service of a copy of the findings, or the defendant gave his notes therefor due in nine months, at 8 per cent. interest, secured by mortgages upon the undivided two-thirds of said lands, with the usual covenants for the payment of taxes. Judgment was thereupon entered accordingly, and requiring the mortgage to contain a stipulation “for a reasonable attorney's fee in case of foreclosure.” From that judgment the defendant brings this appeal.Weisbrod, Harshaw & Nevitt, for plaintiff and respondent.

Webster & Brazeau, for defendant and appellant.

CASSODAY, J.

There is some little discrepancy between the testimony of the plaintiff and the defendant, Joseph Le Claire, as to just what was said between them a short time prior to the making of the first written contract, and which finally resulted in the making of that contract. The same is true as to the conversation preliminary to the second contract. There is, however, no material difference as to the substance of either of the transactions agreed upon. It is, in effect, admitted that the defendant was, prior to the first conversation, a surveyor engaged in the business of a woodsman, locating lands, and ascertaining the amount and value of timber upon them; that he had prior to that time examined and knew the lands described in the first contract, and had his minutes of the description of them; that the lands at the time belonged to the state or the United States, and were subject to entry; that the defendant had not at the time the money with which to enter the lands, and accordingly applied, with his minutes, to the plaintiff for the purpose of making some arrangement for the entry of the lands; that the plaintiff insisted upon having an interest in the lands, and the defendant consented; that the defendant then estimated that there was 5,500,000 feet, board measure, of pine upon the lands described in the first contract, worth $2 per thousand feet, or $11,000; that it would require, to enter that land, and obtain the title, $2,451.99, leaving a surplus or profit of $8,548.01, of which one-third would be $2,849.33; that the plaintiff agreed to these estimates, and from them obtained the two amounts which he had inserted in the first contract; that thereupon, and in pursuance of an agreement between them, the plaintiff paid into the land-office the $2,451.99, and took the title to such lands in his own name when the parties made and signed the first written contract; that the two amounts named in the second contract were ascertained from similar estimates, and an agreement as to the amount of pine on the lands therein described, and thereupon, and in pursuance of an agreement between them, the plaintiff paid into the land-office the $1,456.50 mentioned in that contract, and took the title in his own name when the parties made and signed the second written contract.

The plaintiff does not claim that, upon his acquiring the legal title to the lands, they thereby became absolutely his property. He testified: “I was the party who had the money, and I was to enter the lands with that money, and have an interest in it. The agreement was in accordance with whatever the arrangement was between him and I. In addition to the interestwhich I was to have in the land, I was also to have back my money. That was in the original agreement. I was to have back my money which it cost me to enter the land with. You didn't state it correct. I was to have back the purchase price. I was to have no interest on the money which I invested, unless the interest in the land gave me an interest, a third interest, in the land. I was to have a third interest in the land at the expiration of one year. That is a fact. The agreement which I executed contained the purchase price.”

Going back of the mere form of the writing, considered by itself, as we must in equity, and looking at the substance of the first transaction, as revealed by the evidence and partially embodied in the first contract, and we find that the plaintiff paid into the land-office the $2,451.99 mentioned in that contract, and took the title in his own name to the lands therein described, with the understanding and upon the agreement that the equal undivided one-third of those lands (estimated to be worth $11,000) should be held by him for himself as his own property absolutely; that he should for one year continue to hold the legal title to the other equal undivided two-thirds solely as security for the repayment to him by the defendant of the $2,459.99 so advanced; that at the end of the year the defendant should have the optional right to a conveyance of the plaintiff's undivided one-third, upon the payment to him of $2,849.33, and should then also have a right to a conveyance of his own undivided two-thirds upon the repayment in cash of the $2,451.99 so advanced, or, in lieu of the cash, his note for that amount due in one year, with interest at 8 per cent., secured by a mortgage upon the two-thirds to be so conveyed.

In equity the transaction was substantially the same as though the plaintiff had only taken the title to the equal undivided one-third of the lands, and the defendant had taken the title to the other equal undivided two-thirds of the lands, and thereupon given to the plaintiff his note for the $2,451.99, payable and drawing interest as stated, secured by mortgage on said two-thirds of said land, and at the same time taking from the plaintiff an optional agreement for the purchase of his one-third at the end of the year for the $2,849.33. Why was it agreed that the defendant could only have a conveyance of...