Parish v. Reeve , 63 Wis. 315 ( 1885 )

Colts-, C. J.

This is a case in equity; and if improper evidence was admitted on the trial that would afford no ground for a reversal of the judgment, if otherwise correct. In such a case the improper evidence is disregarded by this court, so the error in admitting it becomes immaterial.

Coming to the case on the merits, the first question to be considered is as to the nature of the conveyance of October 27, 1881, from the plaintiff and her husband to the defendant Reeve. Was that deed understood by the parties to it to be an absolute conveyance of the premises for the sum of $3,000, as found by the court below, or was it in the nature of a mortgage ? The deed is absolute in form. But it is conceded that it was competent to show by parol testimony that it was given to secure a debt, and, in legal effect, was a mortgage, if such were the fact.

The evidence upon the question is somewhat conflicting, but the decided preponderance of proof supports the finding of the trial court. Even the complaint itself tends to sustain the conclusion that there was an absolute sale of the property, for the principal relief asked is that this conveyance be adjudged a mortgage, and that the plaintiff have the right to redeem from such mortgage within a year after the payment to her of the sum of $1,120, or such other sum as the court may find to be equitably due her as pa/rt of the purchase price of the premises. There were tax liens and mortgages upon the property, which it is admitted the defendant assumed and discharged. The defendant Reeve claims that there were some other debts 'which were to be paid out of the purchase money, but this the plaintiff denies. Still, the fact that the plaintiff claims she was to receive the balance of the purchase money after all incumbrances were paid, is entirely inconsistent with the ideajjthat the conveyance was understood to be a mere mortgage security on her part. There is no pretense that there was any loan made, but that the defendant had purchased the property for $3,000, and that the plaintiff was to. have the right to redeem the promises within a year by paying the purchase price and taxes, or, in lieu of taxes, the sum of five dollars per month rent. The testimony of the defendant grantee is most explicit and unequivocal that the purchase was absolute, and the clear weight of testimony and all the probabilities of the case tend to show that it was. But we shall not further discuss the evidence upon, this point. It is sufficient to say that the decided preponderance of evidence sustains the finding of the learned circuit court that the conveyance was an absolute deed in fact as well as in form.

Another question is, Was the husband of the plaintiff, who negotiated for her and as her agent transacted the business, authorized to make the sale upon the terms agreed upon? She does not really deny his authority to make a sale of the property, but says she never authorized him to make such a one as he did make. In her testimony she says, in effect, her husband told her he was unable to pay up the mortgage, and he thought it was best to sell the place and get what they could out of it; that Dr. Reeve would take the .place at $3,000, and pay them the balance, aside from the mortgage; that sbe expected to receive the balance of tbe money after the mortgages were discharged. She signed tho deed, when presented to her, to carry ont the sale which her husband had made. She did not object to the terms of the sale, or claim that her husband had exceeded his authority in making it. It appears he was her general agent, who transacted her business and signed her name to notes, etc. A few days after the sale she learned that Dr. Beeve claimed that the deed was an absolute conveyance, but she never notified' him that she considered it simply a mortgage. On the contrary, she approved the arrangement, upon the supposition that they were to have a year to redeem the premises after the purchase money was paid. She knew she was to have a lease of the place for. a year at five dollars a month. She appears to be quite willing to accept and enjoy all the benefits of the sale made by her husband,— even ratifies it in her complaint by asking that the defendant be adjudged to pay that, part of the purchase price which is equitably due her. In view of these facts it seems to us the plaintiff cannot now claim that her husband had no authority to make the sale for her upon the terms and conditions he did.

The court found that the defendant Beeve has paid the consideration mentioned in the deed which he agreed to pay, except §200, which sum, with interest from October 21, 1881, is still due from him to the plaintiff. In arriving at this result it is claimed the court deducted from the purchase money certain debts which should not have been paid out of it, and that more was paid on one of the mortgages than was due upon it.

First, as to the Morse mortgage, which was an incum-brance on the property and had to be discharged. In respect to that mortgage we do not think the proof shows any overpayment. True, there is some conflict of testimony on the point, and an ingenious attempt is made by the learned counsel to show there was not as much due upon it as was paid. We have carefully considered his argument and the evidence. But to our minds the testimony of the witness Darling is quite clear and satisfactory, and we see no reason to doubt the accuracy of his statements. He says no more was paid on that mortgage than was actually due thereon. The Beveridge note was one given by the plaintiff,— or by her husband, who signed her name,— and the defendant was a mere accommodation indorser. He had jiaid, or was liable to pay, the note. The proceeds of the note, we infer, were used to carry on the “ notion business,” which, as we understand, was in the name of the plaintiff. Presumably she had the benefit of that note, and it is but just that she should pay it, Dr. Reeve testified that by the terms of the sale the Hutchinson debt and his claim for professional services were to be allowed as part payment of the consideration money. It was, doubtless, on the strength of this testimony that the court considered that these claims should be deducted from the purchase price. Upon the evidence in this record it is impossible to say there was any error in allowing them. These are all the disputed items which were allowed.

A preliminary injunction was obtained in the suit, enjoining the defendant Reeve from interfering with plaintiff’s possession of the premises, and to restrain the defendant Golden from enforcing a writ of restitution in his ‘■hands, as sheriff. The court held that this injunction was ¡improperly granted, and ordered a reference to assess the damages which Reeve had sustained by reason of it. A question is made as to the regularity of this practice, but it seems to be authorized by sec. 2718, R. S. That section, in effect, provides, where the court finally decides that the party obtaining the injunction was not entitled to it, that the damages which the other party has sustained by reason of it may be ascertained by a, reference, or otherwise, as the court shall direct. It appears from the authorities cited by defendants’ counsel that in New York, under a similar statute, the practice has obtained, after a hearing and rendition of judgment on the merits, in favor of the party enjoined, that he may have a reference to assess his damages sustained by reason of the injunction. See Methodist Churches v. Barker, 18 N. Y. 463; Jordan v. Volkenning, 72 N. Y. 300; Musgrave v. Sherwood, 76 N. Y. 194; Loomis v. Brown, 16 Barb. 325; 2 Wait’s Pr. 122. We can see no objection to the practice, and such is the obvious intention of the statute. The court, on the report of the referee, fixes the amount of damages. Here there is no question as to the effect of the order on the sureties in the undertaking who have no notice of the proceeding. This disposes of all the material questions in the case.

By the Court.— The judgment of the circuit court is affirmed.