Zoerb v. Paetz

• Decision Date: 29 September 1908
• Citation: 137 Wis. 59,117 N.W. 793
• Parties: ZOERB v. PAETZ ET AL.
• Court: Wisconsin Supreme Court

137 Wis. 59

117 N.W. 793

ZOERB

v.PAETZ ET AL.

Supreme Court of Wisconsin.

Sept. 29, 1908.

Appeal from Circuit Court, Kewaunee County; Michael Kirwan, Judge.

Consolidated actions by Frederick Zoerb against John Paetz, administrator of Louisa Kautz, deceased, and others, and by John Paetz, as administrator, against Frederick Zoerb. From a judgment denying relief to Frederick Zoerb, he appeals. Affirmed.

Two equitable actions were consolidated and tried together. The first action was brought by Paetz, as administrator of the estate of one Louisa Kautz, deceased, to set aside and cancel a deed of lands executed by her to Zoerb a week before her death, on the ground that the deed was obtained by fraud and was never in fact delivered. The second action was afterward brought by Zoerb, alleging a mutual mistake in the description of part of the lands included in the deed, and praying reformation thereof in this respect. In the latter action the defendant put in a counterclaim containing substantially the allegations of his complaint in the first action. To this counterclaim a reply was served, and the two actions were then consolidated. All the heirs at law of Mrs. Kautz are parties to the consolidated action. There was very little material dispute as to the facts. Louisa Kautz, the intestate, was an aged and infirm widow, owning 40 acres of farm land in Manitowoc county and 80 acres in Kewaunee, and living alone upon the Manitowoc land, which was her homestead, and possessing household furniture, stock, and farming implements. Her heirs consisted of a number of nephews and nieces and children of deceased nephews and nieces, all of whom are parties to this action. The plaintiff was a son of one of the nieces, and was a married man living in the town of Menomonee, Mich. He came to Mrs. Kautz's home from Menomonee in the latter part of June, 1905, and remained there several days, his wife remaining in Michigan. During this time negotiations were had between him and Mrs. Kautz looking towards the deeding of the lands in question to Zoerb in consideration of an agreement to support and care for Mrs. Kautz during her life. These negotiations resulted in the calling in of Adolph Chloupek, a lawyer and notary public residing at Mishicott, eight miles distant, on July 3, 1905, to draw the papers necessary to carry out the agreement which had been made. Neither of the parties knew what form the papers were to take, but both relied on Mr. Chloupek to draw such papers as were necessary to give effect to the agreement. Mr. Chloupek came to the house, and, after talking with the parties, advised the making of a deed of the lands and a bill of sale of the personal property at the homestead to Zoerb and the giving back of a bond for care and support secured by mortgage on the lands conveyed; this being satisfactory to the parties he proceeded to draw the papers. He determined in his own mind that it would be better to have Mrs. Zoerb join in executing the bond and mortgage with her husband, but did not inform the parties of this conclusion at the time. Having learned the details of the arrangement, he drew a bill of sale of the personal property and a warranty deed of the lands to Zoerb (inserting, however, by mistake an erroneous description of the Kewaunee county lands) and a bond for care and support in the penal sum of $3,000 in form making both Zoerb and his wife promisors, and a mortgage on the lands also to be executed by Zoerb and his wife to secure performance of the conditions of the bond. The conditions were numerous, and provided for support and personal care in sickness and health, for board in case she chose to board with the Zoerbs, and for certain quantities of provisions annually in case she chose to board herself, for a certain cash payment each year, for the use by her of certain rooms in the house, for the cleaning and scrubbing of those rooms, for the furnishing of firewood and water, and other things. The consideration named in the deed was $1 and other valuable considerations. When the papers were completed, Chloupek temporarily forgot that Mrs. Zoerb was to sign them, and had Mrs. Kautz sign the deed and bill of sale, and Mr. Zoerb the bond and mortgage, and all the papers were formally delivered. Zoerb paid the...