Ames v. Ames , 5 Wis. 160 ( 1856 )

By the Court,

Ogle J.

We are of tbe .opinion- that -tbe Circuit Court erred in admitting tbe mortgage to be read in evidence under tbe averments in the bill. There was a fatal variance between tbe mortgage described in tbe bill, and the one offered in proof. Tbe bill states that tbe mortgage was conditioned for the payment of tbe sum of $180.72, and interest, according to tbe note described in tbe mortgage, while the mortgage offered in evidence was conditioned for tbe payment, not only of this note, but also to secure tbe payment of $7, annually', to tbe mortgagees, Nathaniel Ames and Sarah Ames, or the survivor for life. The objection seems well taken that this was not tbe mortgage described in the bill, but quite a different instrument. For if it is essential to mention at all in the bill the condition of the mortgage, it is equally essential that it should be correctly described. Suppose tbe complainant had offered to read in support of this averment a mortgage conditioned not only to secure tbe payment of tbe note in bis bill set forth, but of half a dozen other notes, or bonds, would such a mortgage have been admissible under this averment ? The averment is descriptive of tbe mortgage, and should correspond with it. Tbe bill, therefore, must be amended in that particular.

The other objections to the admission of tbe mortgage, in evidence, on tbe ground of variance, are not well taken. Although there is an evident mistake in stating in tbe bill that tbe mortgage was executed and delivered to the complainant, whereas it appeared that it was executed to Nathaniel and Sarah Ames; yet this defect is cured by a subsequent averment that tbe note and mortgage bad been duly assigned to the complainant.

It is insisted that tbe assignment is defective, not having been signed by Sarah Ames. By tbe condition of the mortgage the annuity of $7 was to be paid to Nathaniel and Sarah Ames for life, or to the survivor of them. Whether or not the interest of Sarah in this annuity was a chose in action, under tbe dominion and control of her husband, which be might sell and assign as be thought proper, we do not feel called upon to decide. The decree, we think, must be reversed for the reason already suggested. We might perhaps stop here, but we deem it proper briefly to state our views upon the merits of the defence set up to this suit.

It is contended that the note and mortgage have been paid and satisfied, by other notes, and a mortgage given by Wessells upon purchasing the mortgaged property. " There is considerable testimony taken upon this point in the case. I do not propose entering upon an examination of this testimony, but shall content myself in stating the conclusions to which we have arrived upon it.

It app’ears that Owen Wessells, in January, 1854, entered into negotiations with the appellant, Ira L. Ames, about buying the latter’s farm. At the time there were two mortgages upon the farm in favor of Ira’s father, Nathaniel Ames. This suit is instituted to foreclose one of those mortgages. Wessells was unwilling to buy the farm, unless an arrangement could be made by which the two mortgages could be given up, and discharged, and a new mortgage given by him to Nathaniel. So he and Ira saw Nathaniel, and induced him to agree to make that arrangement. The sale being made by Ira to Wessells, the latter made and executed three promissory notes, for certain amounts, in favor of Nathaniel Ames; two of them secured by a mortgage. Nathaniel was not present in Madison when the notes were made, and mortgage executed and acknowledged. The notes and mortgage were given to Mr. Frink, who had the mortgage recorded, and then sent the same, with the notes, by Ira to Nathaniel. But Nathaniel refused to receive the mortgage and notes, insisting that the mortgage had not been made out and recorded, according to the previous understanding. And we are clearly .of the opinion that he never did' receive the notes and mortgage given by Wessells in lieu of, and in satisfaction of the two old mortgages. Had the matter been consummated by Nathaniel’s receiving the new notes and mortgage in full discharge and satisfaction of the old ones, there would perhaps have been plausibility, if not merit, in the defence. But he did no such thing, and the present mortgage is still subsisting, unsatisfied and unpaid.

It bas been contended that Nathaniel Ames constituted Mr. Frink his agent to receive from Wessells the new notes and mortgage, and consummate the arrangement, ,and that he is now bound by his acts. Mr. Frink went down - to Nathaniel’s house as the agent or attorney of Ira. He says that he went there for .the purpose of'making some arrangement with Nathaniel and Wessells to pay off the old mortgages by giving new ones. But the arrangement agreed upon was not, and could not be perfected at that time. It was to be done at Madison, some distance from Nathaniel’s house. Nathaniel requested Mr. Frink to see that all was done right, have the new mortgage recorded and sent to him, with the notes. Then he was to cancel the old mortgages ; that is, when he received and accepted the'new one. He reserved to himself the right and power of accepting them or not, in discharge of those he already held. We do not think he gave Mr. Frink any authority to bind him to the extent claimed.

The decree of the Circuit Court must be reversed, and the cause remanded for further proceedings according to law.