Frey v. Vanderhoof , 15 Wis. 397 ( 1862 )

By the Court,

PAINE, J.

We are satisfied from the evidence in this case, that the truth of the matter is substantially stated in the defendant’s answer. The defendant, Gilbert I. Vanderhoof, sold his farm to the plaintiff. The mortgage which the plaintiff seeks to foreclose in this suit, was, at the time of the sale, an existing incumbrance on the farm, and it was a part of the agreement that the farm was to be sold subject to this and some other incumbrances, which the plaintiff agreed to pay. A part of tbe consideration was paid by the plaintiff, and a mortgage executed to the defendant to secure the unpaid balance, which mortgage was, of course, subsequent to those which the plaintiff had assumed.

The defendant subsequently foreclosed his mortgage, and bid in the premises at the sale. The plaintiff had previously paid this mortgage, which he now seeks to foreclose, but instead of having it discharged he took an assignment of it, and is now seeking to enforce it against Vanderhoof.

If Vanderhoof h&ñ. conveyed the farm directly to the plaintiff, upon the agreement above stated, it is very obvious that the latter could not now enforce this mortgage. As between him and Vanderhoof he was bound to pay it. And his taking an assignment of it was in violation of his obligation, and in fraud of Vanderhoof s rights.

And we think the fact that Vanderhoof deeded the farm to the plaintiff’s son instead of him, does not change at all the relations or the rights of the parties. The evidence fully shows that Vanderhoof was the vendor, and the plaintiff was the vendee. The bargain was made between them; the plaintiff paid whatever was paid; he undertook to pay the prior incumbrances; and it was a matter of entire indifference to Vanderhoof whether he deeded the farm to the plaintiff, or to his son, at his request.

The only part of the evidence which seems to militate against these conclusions, is that derived from the statements of Vanderhoof in the suit to reform the deed. But upon a close examination of those statements, the conflict between them and the positions maintained by the same parties in this suit, is more apparent than real. Those statements were made, not for the purpose of setting out an entire history of the transaction, but so far only as was material to the purpose of reforming the deed. That having been executed to the plaintiff’s son, it of course became necessary in that suit to proceed against him. And he did undoubtedly become sufficiently a party to the agreement, by becoming the actual grantee in the deed, to justify the allegations made by Vanderhoof in the suit to reform it. The questions which are now presented between the parties to this suit bad not then arisen, and it was entirely immaterial in the other to set forth the facts with reference to them. We therefore, that this part of the evidence should have no tendency to impeach the veracity of the Vanderhoofs, or to cast any doubt upon the correctness of the conclusions "already stated.

There was clearly no error in admitting parol evidence to show the entire consideration for the deed. Conveyances are frequently made in execution of agreements which the conveyances themselves do not show or attempt to show.

And although no parol evidence would be admissible to change the legal effect of the conveyances themselves, yet it may be admitted to show upon what consideration they were made, and to show the whole transaction, where the conveyances constitute only a part. Miller vs. Fitchthorn, 31 Penn. St., 259, 260; Fiske vs. McGregory, 34 N. H., 414.

The judgment is affirmed, with costs.