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Northwestern National Bank vs. Ramsey.

tract with Cloyd upwards of $1,300. There remains unpaid to the Land & River Improvement Company above $3,000. They have no credit upon the contract for the money which they have already paid. They have offered to pay the balance unpaid on this contract with Cloyd, and the notes, on condition that the lots mentioned in the contract be conveyed to them. The position of the plaintiff is that it is in no way responsible for the conveyance of the lots, but is entitled to recover the amount of the notes, irrespective of such conveyance; that the oral contract with Cloyd has no relation to, or influence upon, its rights. Cloyd and Kennedy are both insolvent.

Both parties moved for judgment upon the special verdict. The defendants' motion was denied, whereupon they moved for a new trial, which was denied, and judgment was rendered for the plaintiff for the amount of the notes, from which the defendant Ramsey appealed.

Victor Linley, for the appellant.

For the respondent there was a brief by Ross, Dwyer & Hanitch, and oral argument by W. D. Dwyer.

NEWMAN, J. No doubt, the defendants, as between themselves and Cloyd, bad the right to require all payments made on their notes to be applied upon the contract of the Land & River Improvement Company, in reduction of the unpaid purchase money of the lots, and, on complete payment, to require a proper conveyance. Final payment could not be enforced against them until Cloyd should have been prepared and ready to deliver a proper conveyance. Nor could the defendants require a conveyance until they had paid, or were ready to pay, the full purchase money. Kennedy, by express agreement, stood in Cloyd's place. There is no dispute that he agreed to carry out Cloyd's undertaking in regard to the application of moneys paid by the defendants on their notes. It was in dispute whether the plaintiff took the notes under

Northwestern National Bank vs. Ramsey.

a similar agreement, or with notice of the defendants'equities, in that regard. Both land contracts were transferred to the plaintiff along with the notes. Each note contained these words and figures: “ Value received, lots 1 and 2, block 217, Ninth division, West Superior.” The contracts covered the same lots. If not notice itself, these facts furnish some evidence of notice. It would, at least, suggest to ordinary minds the inference that the notes were related to the payments stipulated in the contracts. At the time when the first notes became due, and before their payment, the defendants raised the question, and refused to pay unless the plaintiff should promise to apply the money paid to the payment of the purchase price of the lots, as Cloyd had promised to do. The plaintiff, with such evidence of the defendants' rights in the premises in its possession, agreed to do just what Cloyd had agreed to do, to have the money applied on the contract of the Land & River Improvement Company. It voluntarily put itself in Cloyd's place as regards the application of these moneys. This may be viewed in either of two ways,- either as a compromise, or as an admission. If the right to have the moneys so applied was really in doubt and in dispute between them, then it was a compromise. If it was not in dispute, it was clear admission of the right, and strong evidence of previous notice of it. That the plaintiff did make such promise, and obtained part of the amount of the notes on the faith of it, is established by the verdict. So, it may fairly be deemed that the defendants have the right, as against the plaintiff, to bave both the money which they have paid, and which they shall pay, upon the notes, applied upon the land contract of Cloyd with the Land & River Improvement Company.

This, in effect, puts the plaintiff in the place in which Cloyd stood before his transfer to Kennedy. It has the same rights, and is subject to the same obligations. Cloyd could not have recovered this final payment of purchase

Northwestern National Bank vs. Ramsey.

money on the defendants' contract with him, unless nor until he was prepared and offering to perform on his part by delivering a proper conveyance of the lots. The obligation of the parties to such contracts is reciprocal. The vendor cannot recover the final balance of purchase money until he has tendered or is ready to make proper conveyance. The vendee cannot require a conveyance until he has tendered and is offering to make payment of the full purchase money. If either party require it, the final payment and the delivery of the conveyance must be concurrent acts. Pomeroy, Cont. (2d ed.), $ 361, and cases cited in notes.

It was not controverted on the trial that the defendants had offered to pay to the plaintiff the full amount unpaid and due upon the Cloyd contract, on condition that it would procure and deliver to them a proper conveyance of the lots, and that it had refused and disavowed all obligation to do so, or to apply the payments to that purpose. This is one of the facts which are determined in the action, although not found by the verdict; for the trial, although in form by a jury, was really by the court. The only issues in the case arose on the equitable defense. There were no legal issues to be tried. The verdict was advisory merely. There should have been the usual finding by the court. The trial court evidently treated the special verdict as its finding, and based its judgment on it. A special verdict is insufficient to support a judgment, unless it finds all the facts which are essential to a recovery in favor of the prevailing party. The same rule is applicable to findings. Bates v. Wilbur, 10 Wis. 415. This verdict, treated as a finding, fails to find in the plaintiff's favor this essential fact of a tender or readiness to perform on its part. On the contrary, an uncontroverted fact is established, and is to be treated as part of the finding (Murphey v. Weil, 89 Wis. 146), that the plaintiff bas disavowed its obligation to perform. So the finding not only

Wilson vs. Burhans.

fails to establish the plaintiff's right to recover, but establishes affirmatively that it has no right to recover.

By the Court.— The judgment of the superior court of Douglas county is reversed, and the cause is remanded with direction to render judgment for the defendants.

Wilson, Respondent, vs. BURHANS, Appellant.

May 25 - June 11, 1897.

Mortgages: Conversion: Frivolous answer.

A mortgage while outstanding as security for the indebtedness evi

denced by promissory notes, is not properly subject to conversion to the mortgagor's damage. An answer in an action on the notes which admitted the indebtedness and set up a counterclaim for the conversion of the mortgage was therefore properly stricken out as frivolous.

APPEAL from a judgment of the superior court of Douglas county: Chas. SMITH, Judge. Affirmed.

Tbis action was commenced to recover of the defendant on two past-due promissory notes of $175 each, with inter- . est at the rate of ten per cent. per annum, on one from the 1st day of February, 1896, and on the other from the 1st day of August, 1896. The notes were dated the 1st day of August, 1894, and were made and given to Frank J. McLean, who, for value, before the commencement of this action, assigned them to the plaintiff, who was at the time of such commencement the lawful owner and holder thereof. The foregoing facts were set forth in the complaint by appropriate allegations. The defendant answered, admitting such plaintiff's causes of action, and for a counterclaim alleged that he gave to the payee of the notes, F. J. McLean,

Wilson vs. Burhans.

a mortgage upon some real property to secure the payment thereof; that such mortgage was assigned by such payee to plaintiff; that it was of the value of $5,000; that neither the payee of the notes nor plaintiff had accounted therefor; that plaintiff had converted said mortgage to his own use; and that defendant claimed the value thereof, to wit, $5,000, as a counterclaim to plaintiff's causes of action,- and demanded a judgment therefor, less the amount due on the notes declared on in the complaint. The court struck out the answer, on motion, as frivolous, and ordered judgment in plaintiff's favor according to the demand of the complaint. Judgment was rendered accordingly, and defendant appealed.

For the appellant the cause was submitted on the brief of Knowles & Wilson.

Francis H. De Groat, for the respondent.

MARSHALL, J. Fairly construed, the allegations of the counterclaim state as facts that defendant gave a real-estate mortgage to secure the payment of the note sued on, that the mortgage came into the possession and ownership of plaintiff with such notes, and that he retained the same notwithstanding the action at law to recover the indebtedness. The allegation that the plaintiff had not accounted for the mortgage, but bad converted the same to his own use, obviously means no more than indicated. That plaintiff had a right to retain the mortgage, and proceed at law to collect the indebtedness, requires no discussion. The mortgage, while outstanding as security for the indebtedness evidenced by the notes, did not constitute property subject to conversion, to defendant's damage, by plaintiff or any one else. Defendant had no property, strictly so called, in the mortgage. It bad no value independent of the indebtedness it was given to secure. Upon payment of such indebtedness the mortgage would become valueless, and defendant would be entitled to have it discharged; and the remedies to that

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