Wilson v. Winter

• Decision Date: 01 January 1881
• Parties: WILSON v. WINTER and Wife.
• Court: U.S. District Court — Western District of Wisconsin

6 F. 16

WILSON v. WINTER and Wife.

United States Circuit Court, W.D. Wisconsin.

1881

J. F Ellis, for complainant.

Meggett & Teal, for defendant.

BUNN D.J.

This action is brought by the plaintiff, who is a resident of New Jersey, against the defendants, who reside in the county of Eau Claire, Wisconsin, to foreclose a mortgage for the sum of $1,200, executed by the defendants to the plaintiff on July 8, 1878, upon certain land of the defendants. The mortgage is collateral to a bond executed by the defendants at the same time. The defendants' answer, which is under oath, sets up several defenses: First, they deny the execution of the bond and mortgage sued upon. Second, they allege that they are Germans by birth, and cannot read or write the English language; that they made an agreement with an attorney and agent of the plaintiff for a loan of $1,200 on five years' time, with 10 per cent. annual interest; that to carry out said agreement they executed, acknowledged, and delivered the bond and mortgage set out in the complaint which had been prepared for them by the plaintiff's attorney, supposing, without reading them, that they were a bond and mortgage running five years, with 10 per cent interest, payable annually, whereas the mortgage was, in fact, so drawn as to fall due in four years' time, and the interest was made payable semi-annually; and the mortgage also contained a provision that, in case the interest remained at any time overdue for 10 days, it should be optional with the mortgagee to declare the whole sum due, of which provision they were ignorant when they signed the mortgage. Third, that the bond and mortgage were made, executed, and delivered on Sunday, the seventh day of July, 1878, instead of July 8, 1878, the day of their date, and are consequently void under the Sunday law.

There is no evidence whatever to support the first defence. There was a great deal of testimony taken in support of the second, but it all goes but a small way to defeat the mortgage.

The defendant Johann Winter testifies that he applied to R. D. Campbell, residing at Augusta, near where defendants reside, to obtain for him a loan of money, and offered to pay him $50 to get him a loan of $1,200 for five years, at 10 per cent., and that Campbell agreed to get it for him; that after Campbell had arranged with J. F. Ellis, an attorney at Eau Claire, to secure the loan, and after Ellis had obtained a promise of it from the plaintiff, Campbell, who was himself an attorney, drew up the papers, and presented them to the defendants for their signatures, stating that they were all right. Defendants thereupon executed the bond and mortgage without requiring them to be read or explained to them, and not being able to read them themselves; and on the next day went to Eau Claire and consummated the loan with Ellis by delivering the papers and getting the money, without reading the bond and mortgage, or requiring any further explanation of their contents. The mortgage contains a stipulation for the payment of semi-annual interest on the first day of December and June in each year; is drawn to become due on July 7, 1882, four years from date, and contains the option clause above referred to. The testimony to show these facts is quite voluminous, but it constitutes no defence to the action. There is no evidence of any fraud. Campbell, instead of being the agent of the plaintiff, was the agent of the defendants in procuring the loan and drawing the papers; and if the defendants did not understand the stipulation contained in the bond and mortgage it was their own fault. If they did not understand the English language, there was the greater need on their part of having the writing explained to them before they signed it; and they cannot set up their own gross negligence in that behalf to defeat a written contract, entered into with all the solemnities and formalities of law. The defendant testifies before the examiner at great length as to what the terms of the contract were as agreed upon between him and his agent, Mr. Campbell, as though it were possible to substitute that agreement in the place of the writing itself.

As to the third and last defence, I think the case made by the defendants is quite as defective and unsatisfactory.

The bond and mortgage are dated on July the 8th, which fell on Monday. The acknowledgement before J. R. Button, the justice also bears that day. Button testifies that he took the acknowledgment of both the bond and mortgage on that day, in his office at Augusta; that the defendants were both present in his office at the time. He says: 'I was sitting at my table where I do my...