Herzog v. Boll

Wisconsin Supreme Court
Herzog v. Boll, 62 Wis. 21 (Wis. 1884)
21 N.W. 800; 1884 Wisc. LEXIS 282
Cole

Herzog v. Boll

Opinion of the Court

Cole, C. J.

The most favorable view we can possibly take of the evidence in favor of the defendants is to say that the conveyances of December 1, 1880, of the Calumet county lands, by John Anton Boll to Jacob and Valentine Boll, were made upon the distinct consideration that the grantees-therein would satisfy and discharge the notes and mortgages set forth in the complaint. The circuit court found as a fact that those conveyances were made upon that consideration, and there is certainly evidence which supports the finding. The defendant John Anton Boll testified, in effect, that he gave his sons that land in consideration of their paying these debts;, that each grantee was to pay $G00, which would discharge them. It is true, the sons deny that this was the agreement or consideration for the conveyances, and that they accepted the deeds upon any such condition. But in this conflict of testimony upon the point we must hold that the conveyances were made upon the considera*25tion and. agreement that the grantees therein would pay and discharge these notes and mortgages as the court finds.

But the court below further found that there was a joint undertaking on the part of Jacob and Yalentine Boll to satisfy these notes and mortgages, and accordingly dismissed the complaint as to both causes of action. If the evidence showed that there was such a joint undertaking, there would be ground for claiming that there should be no foreclosure of either mortgage, because it would then be the duty of Yalentine — the plaintiff’s assignor — to see that both mortgages were discharged. These securities were confessedly transferred to the plaintiff long 'after they became due, and were, of course, subject to all existing equities. But we fail to find in the case a scintilla of proof of such joint undertaking or agreement. John Anton Boll made a deed to Yalentine of the west half of the Calumet lots, and to Jacob a deed of the east half. Each grantee took possession of his respective portion. ’While, as we have said, the consideration for these conveyances probably was an agreement by each grantee to pay one half of the mortgage debts, there was no joint undertaking to that effect. The liability was a several one; consequently Yalentine did not become liable for the. payment and discharge of both mortgages. If he satisfied one half of the mortgage debt, he discharged his obligation as we find it. The mortgages •were not for equal amounts, still there is no difficulty ■whatever in ascertaining what was due upon them December 1, 1880. Yalentine is liable to pay one half that amount. The .transaction of February 18, 1881, in respect to the transfer of the mortgage held by Wilhelm must be deemed and treated as a payment of that mortgage by Yalentine, for which he should have credit, less two months and eighteen days’ interest thereon. After deducting this credit from one half of the mortgage debts found due December 1, 1880, the balance should be applied on the $600 mortgage *26held by Talen tine. This will equalize the payment of the mortgage debts assumed, so far as he is concerned. When this application is made, the remainder of the debt secured by that mortgage will be a subsisting lien upon the premises, for which a judgment of foreclosure should be. given. It is apparent that the defendant will have his remedy against Jacob for one half the mortgage debts which the latter undertook and agreed to pay for the land conveyed to him. But we see no ground for holding that the grantees were jointly liable so that the entire mortgage debts can be collected of Valentine, which was really what the judgment of the court below amounted to; for there is no fact or circumstance disclosed in the case which warrants that conclusion.

It follows from these views that the judgment of the circuit court must be reversed, and the cause must be remanded for a judgment of foreclosure in accordance with this opinion.

By the Court.- — • It is so ordered.

Reference

Full Case Name
Herzog v. Boll and his guardian
Status
Published