Tobin v. Tobin

121 N.W. 144, 139 Wis. 494, 1909 Wisc. LEXIS 168

• Court: Wisconsin Supreme Court
• Decided: May 11, 1909
• Status: Published

Opinion

Kerwin, J.

There is considerable discussion in the briefs on both sides respecting the jurisdiction of the county court to make the order assigning the note and mortgage referred to in the statement of facts to Joseph Tobin, and also on the question whether a case of fraud was made which would justify the county court in setting aside the order on the application of Marie Tobin as administratrix. These questions, however, become material only in the event that it be determined that the note and mortgage in question were the property of John Tobin. The controlling question is whether John Tobin was the owner of the note and mortgage. It is established by the evidence that Joseph never gave or intended to give the note and mortgage to John and that John never knew of the execution thereof, and that there was no acceptance on the part of John; therefore there was no gift. Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940; Scott v. Berkshire Co. Sav. Bank, 140 Mass. 157, 2 N. E. 925; Thomas v. Thomas, 107 Mo. 459, 18 S. W. 27; Pope v. Burlington Sav. Bank, 56 Vt. 284; Sherman v. New Bedford F. C. Sav. Bank, 188 Mass. 581. The theory of the court below was that the taking of the note and mortgage in the name of John Tobin and recording the mortgage by Joseph vested title to the note and mortgage in John, under the provisions of sec. 2077, Stats. (1898), and therefore no right or interest remained in Joseph. This is the position of counsel for respondents to support title to the note and mortgage in John Tobin and his estate, and in support of this contention he quotes sec. 2077, Stats. (1898) :

“When a grant for a valuable consideration shall be made to one person and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment is made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.”

The question, therefore, arises whether a note secured by mortgage on real estate is within sec. 2077, Stats. (1898). A mortgage in this state merely gives a lien upon the land mortgaged for the sum of money secured thereby. Brinkman v. Jones, 44 Wis. 498. A mortgage securing a promissory note passes as an incident upon transfer of the note. Kelley v. Whitney, 45 Wis. 110. And an assignment of the mortgage alone and separate from the note it was given to secure will not transfer the note unless it is in fact delivered. Wilson v. Carpenter, 17 Wis. 512; Hitchcock v. Merrick, 18 Wis. 357. A mortgage is extinguished by payment of the debt it was given to secure. Fisher v. Otis, 3 Pin. 78. It therefore follows that the debt secured by the mortgage is the principal thing and the mortgage the incident. Hence a mortgage given to secure a note is not a “grant” within the meaning of the statute referred to, unless it can be said that the statute applies to personal property. We think our statute (sec. 2077) applies exclusively to real estate. It is found in the chapter on Uses and Trusts Concerning Real Estate, and is unmistakably confined to that class of property. Our statute is a substantial copy of the New York statute, from which it was taken. In New York this statute has been held to apply to real estate only; and is not controlling in transactions involving personal property. Fairchild v. Fairchild, 64 N. Y. 471; Day v. Roth, 18 N. Y. 448; Oilman v. McArdle, 99 N. Y. 451, 2 N. E. 464; Perry, Trusts, § 86; Carr v. Carr, 52 N. Y. 251. The “grant” referred to in the statute is an absolute grant of the land by which the title to the real estate vests in the grantee named in the deed. McCartney v. Bostwick, 32 N. Y. 53; Carr v. Carr, supra. The note and mortgage being the property of Joseph Tobin, and never having passed to John.Tobin, it is unnecessary to consider the questions discussed respecting the regularity of the proceedings appointing the special administrator and assigning the note and mortgage to Joseph Tobin. The property was his, and whether the proceedings were regular or not the respondents were not prejudiced thereby. Respondents rely upon Cerney v. Pawlot, 66 Wis. 262, 28 N. W. 183, and Meier v. Bell, 119 Wis. 482, 97 N. W. 186. These eases appear to hold, as contended by respondents, that sec. 2077,. Stats. (1898), applies to mortgages, but it seems the point was not necessary to uphold the conclusion of the court in either case. In Cerney v. Pawlot, supra, the case turned on whether there had been a delivery of the note and mortgage- and acceptance. In Meier v. Bell, supra, the action was for reformation, and it was held that the evidence was not sufficient to warrant the court in adjudging reformation. But so far as these cases hold that sec. 2077 applies to mortgages they must be regarded overruled.

By the Gourt. — The judgment of the court below is reversed, and the cause remanded with directions to the circuit court to reverse the judgment of the county court.