Schultz v. Schultz

Wisconsin Supreme Court

Schultz v. Schultz

95 N.W. 151, 118 Wis. 228, 1903 Wisc. LEXIS 40

CourtWisconsin Supreme Court

DecidedMay 29, 1903

StatusPublished

Cited by1 cases

This text of 95 N.W. 151 (Schultz v. Schultz) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schultz v. Schultz, 95 N.W. 151, 118 Wis. 228, 1903 Wisc. LEXIS 40 (Wis. 1903).

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Opinion

Cassoday, C. J.

Two courts have found that the money advanced and loaned by the plaintiff to the defendant William was not so paid nor caused to be paid as a part of the purchase price of the lot. Nevertheless, counsel for the plaintiff contends that the finding should have been the other way. It is unnecessary to determine the question here, since the whole question was at issue and fully determined in the foreclosure action. The defendant Augusta was a defendant in that action. The plaintiff’s complaint therein alleged that she had, or claimed to have, some interest in or lien upon the mortgaged premises, or some part thereof, which interest or lien, if any, had accrued subsequently to the lien of the mortgage. Augusta was the wife of William at the time he gave the note and mortgage, and had been for sis years, but she did not sign the mortgage, notwithstanding it was upon their homestead; and the statute (sec. 2203) made it void without her signature, unless it was given to secure purchase money. And so, to get a lien upon such homestead prior and paramount to any lien or claim of Augusta, the complaint in the foreclosure action alleged, as mentioned in the foregoing statement, that the mortgage was given to secure the payment of part of the purchase price of the land. Augusta answered, and took issue with such allegation. After full hearing, the [233]*233court decided in her favor, and dismissed the foreclosure action. There can be no question but that the judgment entered therein is res adjudicataand binding upon the plaintiff. Keystone L. Co. v. Kolman, 103 Wis. 300, 303, 79 N. W. 224, and cases there cited; Hart v. Moulton, 104 Wis. 349, 80 N. W. 599; South Bend C. P. Co. v. George C. Cribb Co. 105 Wis. 445, 81 N. W. 675; Huebschmann v. Cotzhausen, 107 Wis. 64, 73, 82 N. W. 720. It follows that the court properly rendered judgment in this case in favor of the defendant Augusta and against the plaintiff.

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

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Cassoday, C. J.

Two courts have found that the money advanced and loaned by the plaintiff to the defendant William was not so paid nor caused to be paid as a part of the purchase price of the lot. Nevertheless, counsel for the plaintiff contends that the finding should have been the other way. It is unnecessary to determine the question here, since the whole question was at issue and fully determined in the foreclosure action. The defendant Augusta was a defendant in that action. The plaintiff’s complaint therein alleged that she had, or claimed to have, some interest in or lien upon the mortgaged premises, or some part thereof, which interest or lien, if any, had accrued subsequently to the lien of the mortgage. Augusta was the wife of William at the time he gave the note and mortgage, and had been for sis years, but she did not sign the mortgage, notwithstanding it was upon their homestead; and the statute (sec. 2203) made it void without her signature, unless it was given to secure purchase money. And so, to get a lien upon such homestead prior and paramount to any lien or claim of Augusta, the complaint in the foreclosure action alleged, as mentioned in the foregoing statement, that the mortgage was given to secure the payment of part of the purchase price of the land. Augusta answered, and took issue with such allegation. After full hearing, the [233]*233court decided in her favor, and dismissed the foreclosure action. There can be no question but that the judgment entered therein is res adjudicataand binding upon the plaintiff. Keystone L. Co. v. Kolman, 103 Wis. 300, 303, 79 N. W. 224, and cases there cited; Hart v. Moulton, 104 Wis. 349, 80 N. W. 599; South Bend C. P. Co. v. George C. Cribb Co. 105 Wis. 445, 81 N. W. 675; Huebschmann v. Cotzhausen, 107 Wis. 64, 73, 82 N. W. 720. It follows that the court properly rendered judgment in this case in favor of the defendant Augusta and against the plaintiff.

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

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95 N.W. 151, 118 Wis. 228, 1903 Wisc. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schultz-v-schultz-wis-1903.

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