Carisch v. Farmers & Merchants State Bank , 191 Wis. 550 ( 1927 )

Owen, J.

It appears that this case was noticéd for trial as a jury case and placed upon the calendar under issues of fact for the jury. Upon the opening of court the defendant moved that it be transferred from the jury to the court calendar. The court held that the pleadings presented a court issue and accordingly transferred the case to the court calendar. Appellant contends that the pleadings presented a jury issue, and that the action of the court in transferring the case to the court calendar denied plaintiff the right to a trial by jury. Appellant contends that the action is a straight action at law in replevin, and that no court issues are presented. It will be noticed that the prayer for relief asks for “a further judgment expunging the assignment of said mortgage to the defendant from the records in the office of the register of deeds aforesaid; and for his costs and disbursements herein.” Appellant contends that the nature of the case is not to be judged by the prayer of the complaint, and, as a general proposition, this may be conceded. However, the quoted portion of the prayer clearly calls for equitable relief, and a reference to the complaint reveals facts which entitle the plaintiff to the relief asked for.

It appears from the allegations of the complaint that the plaintiff is the owner and holder of the-note and mortgage; that the records of the office of the. register of deeds of St. Croix county disclose an assignment of said mortgage from Wilcox to the bank, which said assignment was prior to the assignment from Wilcox to the plaintiff. In order to vest the plaintiff with an unclouded title to the mortgage it is necessary to have that assignment expunged from the record. Until that is done by a court of competent jurisdiction the title.of the plaintiff will be under a cloud, and it was appropriate and orderly procedure to obtain that relief in the very action brought to secure possession of the mortgage. This relief being equitable in its nature, and relief to which the plaintiff is entitled upon the allegations of the complaint, stamps the action as an equitable action, an action properly triable by the court, and no error was committed in transferring it to the court calendar.

The only other question in the case is whether the findings are supported by the evidence. The assignment of the mortgage was in writing. It was a straight assignment, and did not reveal the fact that it was assigned as and for collateral security, and purported to vest the bank with full title. -It is undisputed, however, that notwithstanding this form of the written assignment the mortgage was assigned as collateral security. Wilcox admits that it was assigned as collateral security for his original indebtedness of $4,000, but claims that there never was any agreement or understanding between him and the bank that said mortgage should be held as collateral security for any future indebtedness. It appears that the only indebtedness arising from Wilcox to the bank after the assignment of said note and mortgage' arose by reason of Wilcox becoming surety for his son-in-law upon the various notes set forth in the findings of fact. It is apparent that in order to enable the bank to retain or to hold this mortgage as collateral security for that indebtedness it is necessary for it to prove that either at the time of the original assignment it was agreed’ between the bank and Wilcox that the mortgage should be held by the bank as collateral for future indebtedness or that there was such an agreement at some later time. Wilcox emphatically denies that there ever was such an agreement. The only testimony on the part of the bank to establish that there was such an agreement is that of Wiger, the cashier. Wiger’s testimony to establish such an agreement is most unsatisfactory. He does not tell when such an agreement was made, he does not pretend to give the language in which it was couched, but, infer'entially, maintains through his examination that such ap agreement was made. He says it was talked and mentioned several times during different renewals. He says that there'was some conversation along that line at the time the first loan was made to Chapman. Asked to state what that conversation was, he answered: “Supposed to be collateral for that indebtedness as well as Mr. Wilcox.” However, there are certain circumstances that tend to indicate that there was such an understanding between the parties, and give rise to the impression that the indefinite and unsatisfactory nature of Wiger’s testimony was due to an ineptitude of expression. Wiger testified to negotiations between him and Wilcox relating to.a sale of the mortgage to the bank, using the proceeds to pay up Wilcox’s indebtedness to the bank, and it was assumed that the mortgage stood as collateral security for the indebtedness of the son-in-law.

One Jay H. Grjmm also testified that Wilcox told him that the mortgage was with the bank as security for all of his indebtedness. That is not regarded as very strong testimony, because it does not appear whether Wilcox regarded the notes upon which he was surety for his son-in-law as his indebtedness. This alleged admission was denied by Wilcox. There is the further admitted circumstance that the bank would not loan money to Wilcox without security. It is admitted that the son-in-law for whom Wilcox became security was financially irresponsible; that the bank would loan the son-in-law money upon Wilcox’s indorsement, when it would not loan Wilcox money without security, seems quite improbable. It further appears that when he made the payment to the bank which wiped out his original indebtedness, the bank proposed to apply the payment on the larger note of the son-in-law. Wilcox admits this is true. He says he objected to it, but he does not say in what manner. Wiger testifies that Wilcox simply said “he would rather have the other note taken up, and I told him it did not make any difference to us, so I canceled the other note.” There is a further very persuasive circumstance in support of the findings of the trial court, and that is, that upon the payment of this original $4,000 note Wilcox made no demand for the note and mortgage then in possession of the bank.

Our conclusion is that the record contains sufficient evidence to support the findings.

By the Court. — Judgment affirmed.