Connor v. Connor

259 N.W. 729, 218 Wis. 336, 1935 Wisc. LEXIS 133

• Court: Wisconsin Supreme Court
• Decided: June 4, 1935
• Status: Published

Opinions

The following opinion was filed April 2, 1935 :

Rosenberry, C. J.

Upon this appeal it is the contention of the plaintiff that the court, under the facts and the law in this case, was in error in decreeing that the deed in question constituted a mortgage, for the reason, among others, that the court found the debt owing by Homer A. Stone to the plaintiff was paid and satisfied. Respondents contend that the court adjudged no more than that, under the facts and circumstances, the grantors had reserved to themselves an equity of redemption, and that is all the respondents seek.in the case. Under the facts found by the court, the defendant, Homer Stone, was entitled to rescind the transaction of April 17, 1933, and have the note and mortgage that day satisfied, reinstated. He nowhere asks for a rescission of that transaction, nor to have it set aside, but seeks to claim the benefit of the transaction so far as it satisfies the debt owing by him and, without having the debt reinstated, have a new mortgage declared in order that he may secure a new redemption right. He has never demanded rescission or offered to give back what he received. While he alleges that he and his brother have received a commitment from the Federal Land Bank of St. Paul by which they are entitled to a loan of $17,500, he does not ask that the right to redeem be established, but asks that the deed be declared a mortgage, the legal effect of which would be to require another action of foreclosure and a delay of a year and a half or more before the plaintiff could realize upon the property.

We are unable to harmonize defendant Stone’s contentions with well-established principles of law. We find no authority for the proposition, and we are cited to none which holds that a man circumstanced as is Homer Stone can affirm in part what he claims to be an invalid transaction and revoke it in part. First Wisconsin Nat. Bank v. Pedley, 208 Wis. 628, 242 N. W. 512.

He testified upon the trial that the indebtedness was fully satisfied and discharged, and neither in his pleading nor upon the trial or elsewhere has he ever asked or consented to have it reinstated. A mortgage cannot exist without an indebtedness which is secured by it. The indebtedness is the principal consideration; the mortgage an incident to it. The extin-guishment of the debt ipso facto extinguishes the mortgage. Doyon & Rayne Lumber Co. v. Nichols, 196 Wis. 387, 220 N. W. 181. It is considered, therefore, that the court was in error in decreeing the deed made April 17, 1933, to be a mortgage ; there being no existing debt to be secured thereby.

It is considered that the finding of the trial court, that there was in fact overreaching, oppression, or fraud in connection with the giving of the deed on April 17, 1933, was against the great weight and clear preponderance of the evidence. The testimony of the plaintiff and of Mrs. Stone, and particularly the transaction of January 22, 1934, quite conclusively rebut the defendant, Homer Stone’s testimony in that regard. Unless the mere fact that a party to a transaction is in debt of itself amounts to coercion and oppression, it is difficult to see upon what factual basis a finding to that effect can be placed. It is not claimed that the plaintiff threatened foreclosure. No doubt the specter of a foreclosure action is present in the mind of every mortgagor. whose obligations are in default. It is quite apparent that in January, 1934, both Mr. and Mrs. Stone were very dubious about the Jability of the plaintiff to realize more than $6,000 out of the premises, and, when Homer Stone accepted the $225.35 and gave a receipt “fulfilling all verbal obligations,” he voluntarily surrendered any claim he had to a right to redeem. Whatever was outstanding was disposed of by the receipt. While it is true that the plaintiff refused to accept the proposal that he join in an application for a loan to the Federal Farm Loan Bank, and perhaps thereby made it unnecessary for the defendant, Homer Stone, to make or keep good a tender, it is highly significant that Stone never demanded rescission prior to the commencement of the action, alleged no grounds for rescission in the complaint, did not ask rescission in the prayer for relief, nor upon the trial did Homer Stone seek any other relief than to have the deed of April 17, 1933, declared a mortgage. Fie at all times, under all circumstances, insists that the debt is paid; that he owes nothing. While in defendants’ brief it is alleged that Homer Stone seeks nothing but equity of redemption, the defendant Stone has continuously asserted the right not to redeem but to have the deed declared a mortgage. In his effort to keep the benefits of the transaction with the plaintiff and escape the burdens, Homer Stone has taken an inconsistent position. Neither the trial court nor this court under the evidence in this case has power to decree that Homer Stone shall without his consent and against his wishes become a debtor to the plaintiff.

The mere fact that a man is a debtor, or even in more or less necessitous circumstances, does not deprive him of the power to do business, to contract in the ordinary way and bind himself by his own acts. There is in the record not a syllable of testimony that the defendant, Homer Stone, was at any time, in any manner or to any extent, misled as to the nature of the transaction into which he entered. Upon advice of able counsel, as we must assume, he has declined to subject himself to a reinstatement of his personal obligation; no doubt advisedly so. Having taken that position, as a matter of law it follows that the deed of April 17, 1933, cannot be a mortgage. There is no evidence that the plaintiff might in the exercise of ordinary care and diligence have disposed of the premises within a year for more than the amount of money which he had coming, hence the defendant, Homer Stone, cannot recover on that basis.

By the Court. — The judgment appealed from is reversed, and cause remanded with directions to dismiss the counterclaim and for further proceedings in the action for partition.