Summary
The complainants filed in the court below, on the 11th June, 1855, against the said defendants, their bill, for the foreclosure of a mortgage alleged to have been executed by the said Starr and wife to said complainants, bearing date on the 9 th day of April, 1855, securing four certain promissory notes, in said bill described as payable one day after date, and executed by the said defendant, E. J. A. Starr, to ' said complainants, the' -mortgaged premises containing about six acres of land, in the town of Sun Prairie, in said county, and occupied, as alleged in said bill, by the said Starr and wife as their homestead before and at the date of said mortgage and filing of said bill. Said bill, after making various judgment creditors parties thereto, makes Desire Barrell, Elijah Rowley and Moses Rowley also defendants in said bill, as claiming; to have an interest in the mortgaged premises by virtue of a prior mortgage given by the said Starr and wife to secure the purchase money of said premises, and prays that the said complainants may have precedence not only of said judgment creditors, but also, of the said prior mortgage, with the usual prayer for sale, &c., waiving the answer under oath of the defendants.
On the 7th day of July, 1855, a rule was entered requiring the said defendants, Frederick J. A. Starr, Adelaide Starr, Desire Barrell, Elijah Rowley and Moses Rowley, who had been duly subpoenaed, &c., to plead, answer, &c., to said bill, by the 10th day of August, 1855.
On- the 8th July, 1855, subpoena was returned duly servéd upon the defendant Lester Sexton.
On the 20th July, 1855, an order of publication was obtained as to the defendants Lorin Sexton, George Sexton and Edward Bolles.
On the 3d day of August, A. D. 1855, the said defendant, Adelaide Starr, filed her separate answer to said bill, in substance as follows:
That she believed that the said F. J. A. Starr did, on or about the 9th day of April, 1855, execute to said complainants, or some of them, certain promissory notes, but how many or to what amount she did not • know; that said Starr did also, as she believed, at the same time undertake to execute to said complainants, or some of them, a mortgage on the premises described in said bill, but whether said mortgage was legally executed and acknowledged by the said F. J. A. Starr, she could not say; that she had no remembrance or knowledge of ever having joined with the said F. J. A. Starr in the execu-Ron of any deed or mortgage to said complainants, or either of tbem; that at the date aforesaid she was in a very low and feeble state both of mind and body from sickness, &c., and if she executed and acknowledged any such mortgage it was when she was entirely unconscious of what she was doing, and charges knowledge of her aforesaid condition on the part of said complainants, and that, if her signature and acknowledgment were obtained to said mortgage, it was done through the fraud of said complainants, and that she ought 'not to be bound thereby. She further denies that there was anything due on the notes which were alleged to have been given by the said E. J. A. Starr on the said 9th day of April, 1855, but stating that all those notes for the security of which said mortgage had been attempted to be executed, had been, before the commencement of this suit, given up to the said Starr, and canceled, and that, as a consequence thereof, said mortgage, if it ever had any force or effect against either the said E. J. A. Starr or herself, became and was hereby discharged and void. She further admits that the alleged mortgaged premises had been, since about the 8th day of August, 1854, to the time of making her answer, occupied by the said E. J. A. Starr and herself, with their family, as a homestead, and that, therefore, any deed or mortgage thereof of the said E. J. A. Starr, without her voluntary signature, would be absolutely null and void; and claims that, even if said mortgage were properly executed by the said E. J. A. Starr, yet, wanting the voluntary signature of her, the said Adelaide Starr, the same was void. Her answer further acknowledges the execution of the said prior mortgage to the said Desire Barrell, and closes with the usual prayer.
On the same day, also, the defendant Elijah Rowley, filed his answer, stating his ignorance as to the execution of the notes and mortgage described in said bill, but alleging that, if any such had been executed, as set forth, they had been surrendered and canceled before the commencement of this suit; stating also his ignorance as to the claims of the defendants Sexton and Bolles ; admitting that he claims an interest in said premises as owner of the prior mortgage aforesaid, which last-mentioned mortgage was dated the 8th day of August, 1854, securing four notes, amounting in the aggregate to four hundred dollars and interest, part purchase money of said premises, assigned to him by the said Barrell, and stating that no portion of said last-mentioned notes had been paid.
On the 13th day of the same month of August, the said complainants filed their general replications to the aforesaid answers of Adelaide Starr and Elijah Rowley: and on the same day an order was entered requiring Lester Sexton to plead, &c., on or before the 13th November, 1855, and on the same day also order pro confesso as to E. J. A Starr, Desire Barrell and Moses Rowley.
On the 9th November, 1855, the said E. J. A. Starr filed in open court his motion to take off the default entered against him, for the reason that he was absent from the state from the time of the commencement of this suit until the first of August, and then returned too unwell to attend to business, &c., &c., verified by affidavit, and accompanying said motion with a copy of the answer proposed to be filed.
On.the 27th November, 1855, by leave of court, the; said E. J. A. Starr filed his answer, stating in substance that he did, on or about the 9th of April, 1855, execute to said complainants, or some of them, four promissory notes, payable not as in said bill alleged, but some weeks, and perhaps months, after said date — the exact time of payment forgotten, but believed that one of them was payable one day after date, one in three months, one in five months, and the other in six months; and that, to secure the payment of these notes, at the time, &c., he did, at the same time, execute a mortgage, bearing same date with said notes. He further, in said answer, denied that there was anything due on said notes, or either of them, but averred that he had paid, satisfied and discharged all the notes for the security of which said mortgage was given; that on the 10th day of April, 1855, said notes were given up by said complainants to him to be canceled, and were then and there canceled and discharged, whereby said mortgage was also destroyed and no longer of force against said defendant; admitted the occupation of said mortgaged premises as Ms - homestead; -did not know definitely as to the interest of said defendants,-Sexton and Bolles:; admitting the mortgage to Desire Barrell for about six hundred dollars, part purchase money; did not know who owned said mortgage; and prays to be hence dismissed, &c.
To this answer the complainants filed their general replication on.the 3d day of December, 1855.
. ■ On the 19th day of December, 1855¡ the said defendants, E. J. A. Starr, Adelaide Starr and-Elijah Rowley, who had answered as-aforesaid, filed in said court the following interrogatories to.'be answered by said complainants under oath: .. ,-.
Int. 1. Which of said complainants were present when the defendants E. J. A: Starr and Adelaide Starr, executed .the mortgage in the complainant’s bill described ; and • at what particular'place was said mortgage -executed and delivered;" and who drew it up; and to whom-was'said mortgage delivered? - ■■
■■ Int. ■2. How many notes,-and. what the amount of .each, were executed, and delivered -by -the. said E. J¡ A.-Starr-in faYor-of said complainants, at the same time and place -with the said mort-, gage,c-to secure which said mortgage was given?
Int. 3. What became of the notes which were'thus executed « and delivered at the same time and place with said' mortgage ?
Int-4:. Were not all of ..the notes, which were thus executed and delivered at the same time and place of said mortgage subsequently given up to the said E. J. A. Starr, and-canceled? -If all were not.given up, how many of-them -were.; and what became, of the remainder ?• -
Int. 5. What were'the times of payment of the several -notes executed and delivered concurrently with and -at the time and place of said mortgage ? State,, -according to your best impression, information and remembrance. • . ¡
Int. 6. How long was it after the execution of the notes and mortgage, in the foregoing interrogatories mentioned, before said notes were given up, and the .notes in-suit in this cause-given in their" steady and at what particular-', time and-place were these last-named Dotes executed'and delivered; and to whom were-they delivered?
Int. 7. Was the said defendant, Adelaide Starr, ever made acquainted witb tbe fact that the notes, to secure which she had joined in the execution of said mortgage, were given up and canceled, and the notes described in the bill in this cause given in their place ? If so, when, and by whom ?
Int. 8. Who were present when the first-given notes were surrendered and the subsequent notes executed by the said E. J. A. Starr in their stead ?
Int. 9. By whom was the business, in taking said mortgage and receiving and surrendering said notes, &c., transacted, and on whose behalf did he or they act ?
Oa the 7th day of April, A. D. 1856, the answers of said complainants were filed as follows:
“ The joint and several answers of Samuel L. Strong, Caleb B. Crapo and George 0. Russell, parties complainant in this suit, to the several interrogatories by the defendants, Ered. J. A. Starr, Adelaide Starr and Elijah Rowley, exhibited and propounded to all and every of the complainants. ■ These complainants now, and at all times hereafter, saving and reserving to themselves all advantage and benefit of exception to the'manifold errors and imperfections of the said interrogatories, arising from impertinence, immateriality or otherwise, by protestation, not confessing or acknowledging the right of the said defendants to exhibit or propound said interrogatories, for answer thereto, answering the first of said interrogatories, say: That neither of said complainants were present when the said mortgage was executed; that said mortgage was drawn up at the store of the said Ered. J. A. Starr, by the complainant Goodrich, and was taken by said Starr from the store to his house, as he then said, and shortly after brought back by him, executed and acknowledged by himself and the said Adelaide, and delivered to the complainants, Goodrich and Strong, as hereinafter will be made more fully to appear. And these complainants, further answering to the second of said interrogatories, say: that there were four notes, three for the sum of $415.42 each, and one for the sum of $300, executed by the said Ered. J. A. Starr at or about the time of the execution of said mortgage, which said notes were given for certain debts and demands then due and unpaid, which, the complainants, Henry Williams, James Bonnell and Edward H. Goodrich, doing business under the name, style and firm of Williams, Bonnell & Go., in the city of Milwaukee, and Samuel L. Strong, Caleb B.’ Orapo and George 0. Russell, then doing business in Madison under the name, style and firm of Strong, Orapo & Russell, held against the said Fred. J. A. Starr; — that the complainants had been informed, and they believed, that said Starr was insolvent, and being desirous to secure the payment of their several debts and demands aforesaid, the said Goodrich; representing the firm of Williams, Bonnell & Co., and the said Strong, representing the firm of Strong, Orapo & Russell, went to Sun Prairie for that purpose, and on their arrival there found the said Starr in private consultation with divers persons in reference to his business affairs, to a portion of whom, as the said Starr then and there represented to the said Goodrich and Strong, he was indebted; that after a short interview between the said Goodrich and Strong, and the said Starr, as to his affairs, and more particularly with reference to his indebtedness to the said Williams, Bonnell & Co., and Strong, Orapo & Russell, the said Starr offered to give his four promissory notes for the amount of said indebtedness, secured by mortgage to be executed and acknowledged by the said Fred. J. A. Starr and Adelaide Starr, and delivered to the complainants, on the premises described in the said complainants’ bill of complaint, the said Starr then and there representing to the said Goodrich and Strong that the said premises were free and-, clear from all incumbrances whatsoever, excepting what was to become due on a certain mortgage to one Desire Barrell, and that if he, the said Starr, could make a satisfactory arrangement with the complainants for the sum due them, and could also arrange one or two other small matters with some of his other creditors, he would be able to go to New York and buy goods and continue in business, which he was anxious to do: but the said Goodrich and Strong, having reason to suspect that said representations were false, and intended only to mislead and deceive them; and, suspecting such to be the case, they did not like to take tbe said notes and mortgage in full settlement between tbe said Frederick J. A. Starr and tbe complainants without first examining tbe records to ascertain whether said premises were free and clear from all incumbrances, as bad been represented by the- said Starr, and no final settlement was then and there made between him and tbe complainants; but it was understood by and between them respectively that tbe said Frederick J. A. Starr was to execute to tbe complainants his four promissory notes, each for the several amounts hereinbefore stated, from tbe said Fred. J. A. Starr and Adelaide Starr, and tbe said Groodrich and Strong, representing their respective firms, were to take said notes and mortgage to Madison, and if found correct, and tbe mortgaged premises free and clear from all incum-brances, as represented, then they were to receive tbe same in settlement of tbe debts and demands due from tbe said Starr to tbe complainants, and they were to deliver up tbe notes and receipt tbe accounts which they then held against him, and the said Starr was to come to Madison tbe next day and complete tbe arrangement.
“ That in pursuance to this understanding and agreement, tbe said Groodrich drew up tbe mortgage in question, and four promissory notes to be secured by tbe said mortgage, for tbe several amounts hereinbefore stated, which was executed by tbe said Starr; that tbe said. Starr took tbe said mortgage to bis bouse, as be then informed tbe said Groodrich and Strong, and shortly after came back to tbe store with said mortgage executed and acknowledged by himself and tbe said Adelaide Starr, and delivered tbe same to the said Groodrich and Strong, who returned to Madison late in tbe evening, and tbe next morning became satisfied that tbe premises were unincumbered, except as heretofore represented; but on submitting tbe notes, which were what are commonly known as “judgment notes,” to tbe inspection of their attorney, it was discovered that mistakes bad been made in filling up tbe warrants of attorney accompanying all of said notes, and that tbe said Frederick J. A. Starr, coming to Madison according to tbe understanding and agreement made tbe day previous, was informed by tbe said Goodrich and Strong of tbe mistakes aforesaid, and all of said judgment notes were, at tbe store of Strong, Orapo & Russell, delivered up to tbe said. Starr, and four other judgment notes made by tbe said Starr in tbeir stead, and delivered by bim, with tbe mortgage aforesaid, to tbe said Goodrich and Strong, who,.for and on behalf of tbeir respective firms, gave up the notes and receipted tbe accounts which said firms previously held against tbe said Starr. And these complainants, further answering to tbe third, fourth and sixth of said interrogatories say, that tbe same are hereinbefore sufficiently answered, and require no further answer thereto. And for answer to the fifth of said interrogatories say, that according to their best impression, information and remembrance, the notes first made by the said Frederick J. A. Starr, at Sun Prairie, to the complainants, and which were subsequently ascertained to be incorrect, as hereinbefore mentioned and set forth, were of the same tenor and date, and payable at the same time, as the notes subsequently made by the said Starr to the complainants, and substituted in their place, as hereinbefore more particularly and at largo set forth. And these complainants, further answering to the seventh of said interrogatories, say, that they do not know, and cannot state, whether the said defendant, Adelaide Starr, was ever made acquainted with the fact that the notes first given by the said Frederick J. A. Starr to the complainants, as hereinbefore stated and set forth, were subsequently given up, and the notes described in complainants’ bill substituted in their place, as hereinbefore more fully and at large has been made to appear. And these complainants, further answering to the eighth of said interrogatories, say, that at the time of the giving up of the notes, and the execution of-the other notes in their stead to the complainants, as hereinbefore set forth, the complainants, Goodrich, Strong, Russell and I. Solmer, then a clerk in the store of the said Strong, Crapo & Russell, and also the defendant Frederick J. A. Starr, were present, and perhaps some others, but who else, or whether any one except those mentioned and designated, these complainants cannot.-and do not remember. And these complainants, further answering to the ninth and last of said interrogatories, say, that the whole business, from tbe commencement to tbe conclusion of tbe arrange.ment and settlement between tbe complainants and tbe said Frederick J. A. Starr, was transacted by tbe said Goodrich for and on bebalf of tbe said Williams, Bonnell & Co., and tbe said Strong for and on bebalf of tbe said Strong, Crapo & Russell.”
The separate answer of Edwin H, Goodrich, James Bonnell and Henry Williams, to tbe interrogatories of Frederick J. A. Starr, Adelaide Starr and Elijah Rowley, defendants
“ To tbe first interrogatory these complainants answer, that neither of tbe complainants was present when tbe said mortgage was executed ; that said mortgage was drawn up by tbe complainant Goodrich, in tbe store of said Starr, at Sun Prairie, and was taken therefrom by said Starr, as be said to bis bouse, and shortly afterward brought back, executed by himself and wife, and acknowledged by them, as in said bill set forth, and was delivered as hereinafter set forth. To the second interrogatory, these complainants answer that there were four notes executed by the said Starr to the complainants, which said notes were executed and delivered -at the time, in tbe manner, and under-tbe circumstances hereinafter set forth, to wit: the said Starr bad, for some time previous to tbe execution of said notes and mortgage, been indebted unto tbe complainants, Williams,- Bonnell and Goodrich, who were partners under tbe firm name of Williams, Bonnell & Co., and to tbe complainants, Strong, Crapo & Russell, who were partners under tbe firm name of Strong, Crapo & Russell, for goods sold and money advanced to said Starr; and about tbe time of tbe giving of the said notes and mortgage, tbe said complainants became satisfied that tbe said Starr was very much involved, and perhaps insolvent; and the complainant Goodrich, for tbe firm of Williams, Bonnell & Co., and tbe complainant Strong, for tbe firm of Strong, Crapo & Russell, went to Sun Prairie for tbe purpose of collecting or securing tbe claims which their respective firms held against said Starr; that they found him in consultation with some of bis friends and creditors concerning bis affairs, acquainted him with their business, and, after an interview, tbe said Starr professed to adjust their claims against him, by giving bis notes for the amount thereof, and to secure tbe payment of said notes by a mortgage upon tbe premises described in tbe mortgage mentioned in tbe bill of complaint in this cause, wbicb premises be represented were clear from incumbrances, except a certain mortgage executed by himself and wife, to one Desire Barrell; that said Strong and Goodrich were willing to take tbe notes so secured for tbe claims of their respective firms, but were unwilling to take tbe representations of said Starr as to tbe title to said premises. It was therefore agreed that said Starr should, with bis wife, execute said mortgage, and that said Starr should return with said Goodrich and Strong to Madison, and if said premises should be unincum-bered, except as represented by said Starr, and the title satisfactory, that said .'Strong and Goodrich should take such notes and mortgage in discharge of their claims against said Starr. Whereupon the said Goodrich filled out tbe mortgage in said bill mentioned, which said mortgage was by said Starr taken from the store, and was brought back executed by himself and wife as aforesaid. The said Starr, at the same time, executed his four promissory notes, one for the sum of three hundred dollars, due presently, and three others, tbe exact amount of which these complainants cannot set forth, which said notes, as these complainants believe, were made payable at a future day, but at what particular day these complainants cannot state, nor can they state positively that said notes were payable at a future date; that the said notes were executed late at night, and the said Starr represented that it was too late for him to return with them to Madison that night, but that said Goodrich and Strong might take said notes and mortgage, return to Madison, and examine the records as to the title and incumbrances ; that he would come into Madison in the morning, and should the title prove satisfactory, consummate the agreement; and then and there delivered said notes and mortgage to said Strong and Goodrich, who received the same for that purpose, and no other, and returned to Madison late at night; that, on examination, they found the title as stated by said Starr; but on submitting the notes and mortgage to counsel, found that there was a mistake in filling up the warrant of attorney annexed to the notes ; that the next morning, when tRe said Starr -came to Madison, tRey told Rim of tRe mistake made in tRe notes, and tRey tRen drew tRe notes mentioned in said bill of complaint, wRicR the said Starr executed, and delivered them, witlr tRe said mortgage to tRe said GoodricR and Strong, at tRe store of Strong, Crapo & Russell; tRat thereupon the said GoodricR receipted the account of Wil* liams, Bonnell & Co., and gave up the notes which were due that firm, and the said Strong receipted the account of Strong, Crapo & Russell, and they then and there surrendered or destroyed the said first-mentioned notes; that the said first-mentioned notes were never delivered to the said GoodricR and Strong as the absolute property of their respective firms, nor for any other purpose than as hereinbefore stated, and that they were never paid ; that no receipt or credit was ever given said Starr for said first-mentioned notes and mortgage, nor was any credit given for the mortgage until after they Rad examined the records at Madison, and settled with the said Starr in the store of Strong, Crapo & Russell, and until the delivery of the notes and mortgage mentioned in the said bill of complaint.
“ To the third, fourth, fifth and sixth interrogatories, these complainants answer, as they have already answered, in their answer to the second interrogatory. To the seventh interrogatory, these complainants answer, that the said Adelaide was not, to the knowledge offihese complainants, informed of the contents of any of the notes hereinbefore mentioned ; that she certainly never saw them. To the eighth interrogatory, they answer, that they cannot answer further than they have already answered.”
After the hearing, the Circuit Court rendered the usual decree of foreclosure and sale, from which the defendant Frederick J. A. ■Starr appealed.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
