Summary
APPEAL PROM THE ROCK CIRCUIT COURT.
This was a bill filed by the appellant, Hodson, to redeem certain premises, or real estate, which had been sold under a decree of foreclosure.
The bill alleges that on or about the 21st of November, 1850, William Hodson, who was then the owner in fee of the premises in question, executed and delivered to Eliza A. Morgan, who afterwards intermarried with David S. Treat, a mortgage thereon, to secure the payment of one hundred and fifty dollars, in one year from date, with interest thereon, at the rate of twenty-five per cent, per annum until paid, according to the condition of a certain promissory note bearing even date with said mortgage. The mortgage contained the usual power of sale, and was duly recorded.
The bill further alleges that subsequent to the execution and record of said mortgage as aforesaid, and whilst the said William Hodson was still the owner, and seized and possessed of said premises as aforesaid, to wit: on the twenty-ninth day of September, in the year of our Lord one thousand eight hundred and fifty-one, the plaintiff purchased of the said William Hodson, in consideration of the sum of five hundred dollars, or thereabouts, the said real estate and premises above described ; that the said William Hodson and Sarah Hodson, his wife, on the day and year last above mentioned, made and executed under their hands and seals, and delivered to the said John R. Hodson, a warranty deed of the said premises above described, with the appurtenances ; and the consideration above mentioned was thereupon paid by the plaintiff to the said William Hodson, which deed was duly acknowledged by the said William Hodson and Sarah Hodson, on the said twenty-ninth day of September, one thousand eight hundred and fifty-one, and which deed was duly recorded in the office of the register of deeds for said county of Rock, on the tenth day of February, in the year one thousand eight hundred and fifty-three, and is as follows:
“ That on the twenty-eighth day of January, in the year of our Lord one thousand eight hundred and fifty-two, the said Eliza A. Morgan by Sanford A. Hudson, her solicitor, filed in the office of the clerk of this court, her bill of complaint for the foreclosure of the said mortgage, and praying that a decree might be granted for the sale of the mortgaged premises aforesaid, and for the payment of the amount then due to the said Eliza A. Morgan, for the principal and interest upon the said note and mortgage, and for costs of her suit; and that the said defendants and all other persons claiming under them subsequent to the commencement of that suit, and all other persons although not made parties in that suit, who had any claim or lien thereon by or under any such judgment or decree, either as purchasers, incumbrancers or otherwise, might be barred and foreclosed of all equity of redemption in the said premises ; and that the said Eliza A. Morgan might have such further or such other relief as the nature of the case might require, and as to the court might seem proper and agreeable to equity; and also for the usual writ of subpoena issued out of and under the seal of the court, to be directed to William Hodson, Sarah Hodson, Loren Sexton, John Wing, Jr., and Lester Wing, who were made parties defendant to the said bill of complaint. A subpoena was then issued in pursuance of the prayer of said bill, and was directed to the said William Hodson, Sarah Hodson, Loren Sexton, John Wing, Jr., and Lester Sexton, as defendants; and the plaintiff avers and so charges the truth to be that the said William Hodson, Sarah Hodson, Loren Sexton, Jbhn Wing, Jr., and Lester Sexton, were the only person or persons who were made defendants in said bill of complaint, or mentioned in said writ of subpoena ; that the same was made returnable on the twelfth day of February next, following the date thereof, and was returned by the sheriff of the county of Rock, duly served on William Hodson and Sarah Hodson, two of the defendants named, and that a second supboena was also issued as of the same date, and made returnable on the same day as the first, and was directed to the sheriff of Milwaukee county, who made return thereof that he had served the same on John Wing and Lester Sexton, two of said defendants, and that the said Loren Sexton was not in the State.
The bill also alleges that the usual orders to answer were entered, that the defendants made default, and that the bill was taken as confessed against all the parties to the suit; and that on the 28th day of September, 1852, it was ordered, adjudged and decreed, that there was then due the said Eliza Morgan from said William Hodson the sum of $219.20, and that the mortgaged premises be sold, &c., in the usual form.
The bill further alleges that on the 5th day of October, 1852, the commissioner appointed to make said sale, John M. Case, gave public notice of the time and place thereof by advertisement published in the Janesville Gazette, a public newspaper printed in said county of Rock, at least six weeks, (once in each week,) in pursuance of the decree; that on the 11th day of December, 1852, the time of such sale, the premises were struck off to Sanford A. Hudson for the sum of $270, that being the highest sum bidden for the same; and that thereupon, on the same day, the said commissioner executed to the said Sanford A. Hudson a deed in the usual form for said premises.
The complainant then states that he is informed and believes and so charges the truth to be that the said Sanford A. Hudson attended said sale, for the purpose of protecting the interests of the said Eliza A. Morgan, and as her solicitor, with the full understanding and agreement between the said Eliza A. Morgan, and the said Sanford A. Hudson, that he should attend such sale and purchase the said premises in his own name ; and if she, the said Eliza A. Morgan, became convinced that the title thereto was perfect, she, the said Eliza A. Morgan, was to receive a deed of said property instead of the money therefor as the proceeds of such sale as aforesaid; that said premises were sold at such sale for much less than their real value; that said Sanford A. Hudson took said deed in payment and satisfaction of said notes and mortgage; that no money was paid over to the said William Hodson or to the said Eliza A. Morgan on the amount of such sale. But that the said Sanford A. Hudson in purchasing said property, taking said deed and recording the same, acted as the mere agent and trustee of the said Eliza A. Morgan, and retained such deed and title in his own name, until the said Eliza A. Morgan could become satisfied that the title to said property was good; and as soon as she did become so satisfied, and on the twenty-second day of July, A. D. 1853, the said Sanford A. Hudson and Sarah Hudson, his wife, made, executed and delivered, under their hands and seals, to the said Eliza A. Morgan, a quit-claim deed of the said premises; and the plaintiff avers that the only consideration that was paid or that passed for either of the sales last above mentioned, was the two hundred and seventy dollars allowed on the note and mortgage aforesaid, as the amount due thereon, and for which the said premises were struck off at said sale.
“ And further states and shows that at the time of the commencement of the said suit for the foreclosure of said mortgage as aforesaid, by the said Eliza A. Morgan, the legal and equitable title to the said mortgaged premises above described, were in the plaintiff, and that he was, and still is the owner in fee-simple thereof; that he never has in any wise parted with or disposed of any of his right, title or interest in said premises; that he neglected to cause a record of said deed from said William Hodson and Sarah Hodson to be made until the tenth day of February, A. D. 1853, as above set forth, and that he was not made a party to said bill of complaint, so filed as afosesaid, or to any subsequent proceedings had therein, or received any legal notice of the pendency of said suit, so that he avers that his equity of redemption in said premises has not been foreclosed or in any wise affected by said suit, or the sale of said premises. And he further avers that at the time and place of said sale, at the said public auction by the said commissioner as aforesaid, he caused public notice to be given, by proclamation, in the presence and hearing of all who attended said sale, that the title of said mortgaged premises was in him, that he held a deed therefor, and that he was the lawful owner of said premises at the commencement of said foreclosure suit, and still continued to be, and that he had not been made a party to such suit, and cautioned all persons against purchasing said premises, that if they did so, they must do it subject to his right to redeem the same, so that the said Sanford A. Hudson and the said Eliza A. Morgan, took and received said premises with the full knowledge and understanding that the title to said premises was in the said John R. Hodson, and that he had not been made a party to any of the proceedings in the said foreclosure suit, and at the date of the said deed from the said Sanford A. Hudson and wife, to the said Eliza A. Morgan, the said deed to the said John R. Hodson had long been recorded in the office of the Register of deeds for Rock county, as above stated.”
“And he further states and shows that he by his agent, duly authorized for that purpose, on the 10th day of July, A. D. 1855, or thereabouts, tendered to the said Eliza A. Treat and David S. Treat, in lawful money of the United States, the sum of four hundred and twenty dollars, that being the full amount of said decree, together with the interest thereon and the costs and expenses in the premises, and requested the said Eliza A. Treat and David S. Treat to accept the same and re-deed the said premises, as they in equity and good conscience ought to do; but to acccept the said sum of money, or to convey the said premises, the said Eliza A. Treat and David S. Treat, each and both refused to do. And further states that he then and there, by his said agent, forbade the said Eliza A. Treat and David S. Treat from making any improvement upon said premises, that he intended to institute proceedings to redeem the same, that no improvements at that time, had been made or put upon said premises; but he is informed and believes that since that time, the said Eliza A. Treat and David S. Treat have erected or caused to be erected, a dwelling house on said premises, and that they or their tenants are now occupying the same.”
“ And further states and shows that at the time of making said tender, and on the refusal as aforesaid, the said Eliza A. Treat and David S. Treat were informed that the money so tendered, as aforesaid, would remain in the hands of J. M. Haselton, of the city of Janesville, ready for them, and which they could have if they saw fit to comply with said request and demand; but to comply they have as yet entirely refused, and the said money still remains in the hands of the said J. M. Haselton ready to be delivered to the said Eliza A. Treat and David S. Treat and he here again offers to pay them the said sum of money, or so much thereof as may be due them for principal and interest upon the said two hundred and seventy dollars, and their reasonable expenses in the premises, or so much as this court shall deem just and proper, and he now here brings the said moneys into court for the said Eliza A. Treat and David S. Treat, in redemption of the said premises.”
That the said deed from the said William Hodson and wife, and which, bears date on the twenty-eighth day of September, A. D. 1851, was actually made, executed and delivered on the twenty-ninth day of September aforesaid instead of the twenty-eighth, as appears in the body of said deed ; that said twenty-eighth was inserted as the date" thereof through a mistake, whereas It should have been the twenty-ninth ; that the said twenty-eighth day of September, A. D. 1851, was the Holy Sabbath, and he avers that Monday, the twenty-ninth day of said September was the day the said premises were sold, and the day the said deed was executed and delivered as aforesaid, and that the certificate of acknow-ledgement to said deed is correctly dated as of the twenty-ninth day of September, A. D. 1851; and prays that the deed may be re-formed accordingly; alleges that the defendants refuse to permit the complainant to redeem, and to re-convey the premises. The bill prays that the complainant may redeem, and that the defendants convey the premises upon payment by the complainant, of the amount of the purchase money, with interest and reasonable expenses, and for general relief.
The defendants answered, admitting the execution of the mortgage by William Hodson and Sarah his wife, at the time and for the amount set forth in the bill. They deny, on information and belief, that subsequent to the mortgage, on the 29th day of September, 1851, or at any other time, the said William Hodson and wife made, executed, or delivered to said complainant a deed of said premises ; and deny that such deed was duly recorded as alleged in the bill.
And further answering say, that they are informed and believe, and therefore charge the truth to be, that if any such deed was made and executed by the said William Hodson to the said complainant of said premises, as set forth in said bill, that the same was made without consideration, and for the purpose of covering up the property of the said William Hod-son, and placing the same beyond the reach of his creditors ; and for the purpose of cheating and defrauding his creditors; and that said complainant was a party to such fraudulent transactions, and had .full knowledge of the object and purpose of said William Hodson as above set forth ; and further aver, that such deed was made secretly, and the making and execution was kept secret with the intention and purpose on the part of the said complainant and the said William Hod-son, to keep the same from the knowledge of the said Eliza A. Morgan, for the purpose of preventing a full and complete foreclosure of her said mortgage, and for the purpose of preventing a good and perfect title passing on and by virtue of the foreclosure of said mortgage to the person who might purchase the said premises at the sale ordered on the foreclosure of said mortgage, and that said deed was in fact never executed or delivered until after the bill was filed by the said Eliza A. Morgan to foreclose her said mortgage, nor until after said mortgaged premises were sold on the foreclosure of said mortgage, as hereinafter and in said bill stated.
The answer admits the proceedings for forclosure, the final decree, and the sale of said premises under said decree to said Sanford A. Hudson, and the deed of the same to him by the commissioner.
The defendants deny, that Sanford A Hudson attended said sale for the purpose of protecting the interest of the said Eliza A. Moigan, or as her solicitor with the full understanding or agreement between the said Eliza A. Morgan and the said Sanford A. Hudson, that he should attend such sale and purchase the said premises in his own name, and if the said Eliza A. Morgan became convinced that the title thereto was perfect, she, the said Eliza A. Morgan, was to receive the deed of the said property instead of the money therefor as the proceeds of such sale as aforesaid, or that the said premises were sold at such sale for much less than their real value, or that the said Sanford A. Hudson took said deed in payment or satisfaction of said note and mortgage, but admit that no money was paid over to the said William Hodson or the said Eliza A. Morgan on the account of such sale, but deny that the said Sanford A. Hudson in purchasing said property, taking said deed, or recording the same, acted as the mere agent or trustee oí the said Eliza A. Morgan, and deny that said Sanford A. Hudson retained such deed and title in his own name until the said Eliza A. Morgan could become satisfied that the title to said property was good, and further deny that the said Eliza A Morgan ever had any doubt as to the title made by said foreclosure of said mortgage, and sale, and conveyance of said premises, as aforesaid, being good and perfect. But admit that on the 22d day oí July, A. D. 185.% the said Sanford A. Hudson and Sarah Hudson, his wife, made, and executed, and delivered under their hands and seals to the said Eliza A. Morgan, the said deed, a copy of which is set forth in said bill, and admit that the only consideration that was paid or that passed for either of the sales last mentioned, was the two hundred and seventy dollars allowed on the note and mortgage aforesaid, as the amount due thereon, except as hereinafter stated.
But they allege that said Sandford A. Hudson attended said sale for the purpose of purchasing said premises for himself and for his own use and benefit, in case no other person should bid for said premises a sum sufficient to pay the said Eliza A. Morgan the amount due to her on said note and mortgage, as the same was computed and decreed to her for principal and interest, together with the costs and expenses attending said foreclosure of said mortgage and the sale of said premises thereon, and that it was understood and agreed between the said Eliza A. Morgan and the said Sanford A. Hudson, that in case he bid off said premises for a less amount than the sum due her on said decree, together with the costs and expenses of said foreclosure and sale, he, the said Sanford A. Hudson, should pay to the said Eliza A. Morgan, in money the full amount due her on said decree for principal and interest up to the time of said sale, cancel his demand and bill for services as solicitor in said foreclosure suit, and pay such other costs and expenses as had been incurred therein.
That in pursuance of such understanding and agreement, the said Sanford A. Hudson attended said sale ; that the said William Hodson also attended said sale, and bid for said premises a sufficient amount to pay said Eliza A. Morgan the sum due her on said decree, together with the costs and expenses of said foreclosure and sale, and that said premises were thereupon struck off to the said William Hodson, and a deed in proper form made and duly executed, and tendered by the said commissioners to the said William Hodson, but the said William Hodson refused to receive said deed and pay the amount of his bid for the said premises ; whereupon the said commissioner again put said premises up for sale, and the said Sanford A. Hudson bid for the same the sum of two hundred and seventy dollars, there being no higher bid for said premises, the same were struck off and sold by said commissioner to the said Sanford A. Hudson for that sum, and said premises were duly conveyed by said commissioner to said Sanford A. Hudson, as stated in said bill; and these defendants are informed and believe, and therefore state and aver that the said Sanford A. Hudson, immediately after he had purchased said premises as aforesaid, deposited in a bank at Janesville aforesaid, the amount due the said Eliza A. Morgan on said decree for principal and interest, and kept the same in said bank for a long period of time, ready to be paid to the said Eliza A. Morgan whenever she should call for the same; that in the meantime the said Sanford A. Hudson offered the said Eliza A. Morgan, through her agent, A- M. Carrier, that if she, the said Eliza A. Morgan, preferred, he, the said Sanford A. Hudson, would sell the said premises to the said Eliza A. Morgan for the amount for which he had bought the same, and convey the same to her instead of paying her the money, if she, the said Eliza A. Morgan, would pay to the said Sanford a Hudson his fees as solicitor, together with the costs and expenses attending said foreclosure and sale; that the said Eliza A. Morgan, after considering said proposition about two weeks, finally decided to take said premises upon the terms thus offered, whereupon afterwards the said Sanford A. Hudson and wife conveyed the said premises to the said Eliza A. Morgan by deed, bearing date on the 23d day of July, A. D. 1853.
They deny that at the commencement of the said suit for the foreclosure of the said mortgage, the legal or equitable title to the said mortgaged premises was in the said complainant, or that he was or still is the owner in fee-simple thereof, and these defendants aver that he neglected to canse a record of said pretended deed from the said William Hodson to said complainant, to be made for the purpose of carrying out the fraudulent intent aforesaid; and deny any knowledge or information of any deed of William Hodson and wife to said complainant until long after the premises had been conveyed by S. A. Hudson to said Eliza A. Morgan.
The defendants also deny that any notice of the complainant’s title was given at the sale, by proclamation or in any other manner, or that the said S. A. Hudson or the said Eliza took the title to said premises with any notice of the claim of title by the complainant; deny that said complainant, by his agent duly authorized or otherwise, on the tenth day of July, A. D. 1855, or thereabouts, or at any other time, tendered to the said Eliza A. Treat and David S. Treat, or either of them, in lawful money of the United States, the sum of four hundred and twenty dollars, or any other sum; and deny that that is or was the full amount of said decree with interest thereon and the costs and expenses in the premises, or requested the said Eliza A. Treat and David S. Treat, or either of them, to accept the same, or re-deed said premises to said complainant; and deny that said complainant, by his said agent, or otherwise, forbid the said Eliza A. Treat and David S. Treat, or either of them, from making any improvements on said premises, or that said complainant intended to institute proceedings to redeem the same; and deny that no improvements had at that time been made, but aver that improvements to a considerable amount had then been made; admit that since the 10th day of July, 1855, they have erected a dwelling house on said premises, and other improvements to the value of six hundred dollars; deny that the said pretended deed of William Hodson and wife to John R. Hodson was actually made on the 29th of September, 1851; and deny any mistake in said date of said deed, and that the certificate of ac-knowledgement thereon is correctly dated as of the 29th day of September ; and deny all right or equity of redemption.
General replication.
The cause being at issue, came on for hearing at the February term of the Rock circuit, 1857. On the trial, the plaintiff produced in evidence the record of the foreclosure suitj and also proved by J. N. Corson that on Monday, the 29th of September, 1851, he was a justice of the peace for the county of Rock, and that on that day he took the acknowledgment of the deed of William Hodson and wife to John R. Hodson, and that they signed and delivered it on that day. A copy of the deed was also produced, the acknowledgment of which bore date the 29th of September, 1851. The complainant’s counsel then offered in evidence the book of deeds, duly authenticated by the register, exhibiting the record of said deed, but was objected to and rejected by the court.
The complainant also called William R. Hodson, who testified that the deed was executed on Monday, the 29th day of September, 1851. Witness testified that he was present at the mortgage sale, attended as the agent of the complainant, and distinctly told all the parties that the complainant was the owner of the premises, and that whoever bought must buy subject to his fee-simple right and his right to redeem. Mr. Noggle also gave similar notice as agent for the complainant. In consequence of this notice persons refused to bid. It was talked about among all the parties.
"On the 10th of July, 1855, 1 made tender to Treat and wife of #420 00 in American gold; I first tendered to Mrs. Treat and then to Mr. Treat, the defendants. The tender was to pay the amount due and interest on the foreclosure; I requested them to take the money on behalf of John R. Hod-son, and I made the tender as his agent; I so stated to them; I meant the foreclosure suit of Eliza A. Morgan against myself, to redeem the premises sold under mortgage given to Eliza A. Morgan; I asked them to restore the property to John R., Hodson, to restore possession; my memory don’t serve me as to the words; they refused to take the money; I then forbid them, as the agent of John, to make any improvements on the property in dispute ; there were then some stone on the premises, symptoms of improvement, and I thought proper to give them notice not to make any improvements ; I don’t know that any thing further was said ; I notified them that a bill would be filed to redeem the property; I don’t know as I requested them to deed the property to John, but William L. Mitchell did, he was present acting with me; they refused Mitchell’s request; Mitchell went with me for John; when they refused to receive the money, they were notified that it would be placed in the hands of J. M. Haselton, and remain in tender for them to take at any time when they would deed to John; the money was, on the same day, placed in the hands of J. M. Haselton; the same money; I computed the principal and interest at 25 per cent, and made the tender without regard to costs of foreclosure; I requested them to deed the property to my son John R. Hod-son. At the time of sale under decree, the premises were worth about $1,000; I can’t tell; they are now worth without improvements about $3,000.
There was an extended and minute cross-examination of the witness, the design of which was to show that the conveyance by William to John R. Hodson was made to defraud the creditors of the former, as well as to hinder and delay the defendants in the foreclosure of their mortgage, but nothing appears to have been elicited to affect the legal questions presented by the case. William Mitchell, also testified to the tender, and to the forbidding of making any improvements on the premises, and that the tender would he kept good in the hands of Haselton.
Jared M. Haselton testified that the amount of the tender, $420 00, was deposited with him in trust for Treat and wife, whenever they would receive it and convey the premises, and he had always been ready to pay it when required.
Moses R. Pritchard, was present at the sale, and testified that William Hodson was there, and that it was given out by him that John R. Hodson had a deed of the premises.
Sanford A. Hudson, testified that he was the solicitor who conducted the foreclosure suit; was present at the sale; before the property was struck off, William Hodson stated that John R. Hodson had a deed of said block two. He drew the bill. John R. was not a party to it. First heard that John R. owned the property on the day of sale, after the bidding had commenced. William Hodson did not exhibit a deed. “ I bid off the property for myself, and told Miss Morgan that she could have the money or the land; she decided I understood to take the money. I put the money in bank for her; had it two months; she finally concluded to take the land, some two months after the sale.
On the part of the defendants, testimony was offered to discredit the witness, William Hodson, in various forms, but it is unnecessary to insert it, as it has no bearing upon the points adjudicated.
The circuit court dismissed the bill, and complainant appealed.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
