Wetutzke v. Wetutzke

148 N.W. 1088, 158 Wis. 305, 1914 Wisc. LEXIS 299

Opinions

WiNsnow, O. J.

It is held in this case:

1. The original transaction between Franz and his parents, by which Franz agreed to pay certain sums to Walentine -and Gertrude respectively in consideration of the conveyance of the farm, and executed a mortgage to secure such payments, established the relation of debtor and creditor between Franz and each of the beneficiaries, which relation could not be changed merely by agreement of the parents and Franz without the consent of the beneficiaries. Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440.

2. Under the facts found by the court the plaintiff Walen-tine was plainly estopped from asserting any claim under the agreement or mortgage.

3. Not only is Walentine estopped, but he is barred by the twenty-year statute of limitations. Sub. 2, sec. 4220, Stats.

4. Gertrude, not being estopped or barred by the statute’ of limitations, is entitled to foreclose the mortgage for the-amount due her under the agreement, with interest.

By the Gourt. — That portion of the judgment dismissing the complaint, with costs, as to the plaintiff Walentine is affirmed with costs, and the remainder of the judgment is-reversed, witb costs, and tbe action remanded to tbe circuit court witb directions to enter judgment of foreclosure in favor of tbe plaintiff Gertrude, as indicated in tbe opinion.