Wetutzke v. Wetutzke

Contract -for benefit of third person. Rescission: Consent of beneficiary: Estoppel: Limitation of actions: Mortgages: Foreclosure. 1. In consideration of tke conveyance of land by parents to their son F., he agreed to support them during life and to pay certain sums to W.„ another son, and G., a granddaughter, and mortgaged the land to the parents to secure such agreement. Held, that thereby the relation of debtor and creditor was established between F. and each of the beneficiaries, W and G., which relation could not be changed merely by agree ment of the parents and F. without the consent of the beneficiaries. 2. Where by a subsequent agreement between the parents and F. the land was reconveyed upon payment of a sum to F., and the agreement for support was canceled and the mortgage discharged of record, all with the knowledge of W., who made no objection thereto and asserted no claim when the father-mortgaged the land to obtain the money to be paid to F., W. was estopped to make any claim under the original agreement or the mortgage given by F. 3. Even if there was no estoppel, W..’s right of action on the mortgage given by F. was -barred at the end of twenty years after the sum payable to him under the original agreement became due. 4. The other beneficiary, G-., not being estopped or barred by the-statute of limitations, might foreclose the mortgage given by F. for the amount due to her under the agreement, with interest. Timlin, Siebeckee, and Keewin, JJ., dissent.

Appeal from a judgment of tbe circuit court for Green Lake county: Chester A. Eowler, Circuit Judge. Mortgage foreclosure. Tbe facts, as found by tbe court upon sufficient evidence, are, tbat in February, 1884, one Stanislaus Wetutzke and Josepba, bis wife, being aged, deeded their farm of 160 acres and the personal property thereon to their son Franz, receiving back an agreement to support them during life and to pay to tbe plaintiff Walen-tine, their only other son, $600 on his attaining the age of twenty-four years, and to the plaintiff Gertrude Duffy, the only daughter of a deceased daughter, $100 on her attaining the age of eighteen years. This agreement was secured by a mortgage on the farm, which the beneficiaries Waleniine and Gertrude are seeking to foreclose in this action. Both deed and mortgage were immediately recorded. Franz went into possession and commenced to perform the contract of support, and so remained until about August 1, 1890, when it was in good faith agreed between the parents and Franz that he (Franz) should reconvey the premises and property thereon to his father on payment by the father of $600, and that the agreement of support should be canceled and the mortgage discharged. This arrangement was carried out. Franz left tbe premises and the father took possession, paid ■the money, and discharged the mortgage of record. The plaintiff Walentine is found by the court, on sufficient evidence, to have become twenty-four years of age in November, IS 9 2, and the plaintiff Gertrude to have -become eighteen years of age in October, 1897. It does not appear that Franz breached the contract of support, but the cancellation was agreed on because of trouble arising between the parents and Franz's newly-married wife. Walentine had knowledge of the transaction, made no objection, and received $100 of the money paid by the father to Franz in payment of a loan which he had made to Franz. Walentine understood that the agreement and mortgage were canceled, and the court finds that the agreement of cancellation never could have been carried out had Wallentine made objection to the arrangement, because the father was obliged to secure the $600 by mortgage on the premises and could not have done so had a claim then been asserted by Walentine. Shortly after the cancellation arrangement was made, the defendant Anna Jarernba, the remaining daughter, of Stanislaus, came from Michigan with her husband and family and carried on the farm and cared for her parents until their respective deaths, the father’s in 1899 and the mother’s in February, 1913. The family knew at the time of Anna’s return that the parents intended to deed the farm to Anna if she continued to support them, and in 1894 the parents deeded the farm to Anna subject to an incumbrance to one Krueger of $800 upon her executing an agreement to support them during their lives, secured by a mortgage on the property. Anna has paid off the mortgage of $800, besides making improvements on the place aggregating $1,000. The plaintiff Gertrude had no knowledge of the transactions between her grandparents and the defendants Anna and Franz, and none of those transactions were influenced by her statements or conduct. On these facts the court held that Walentine was estopped by his conduct from claiming any rights under the mortgage, that Gertrude was not estopped nor barred by laches, but that the original agreement and the whole thereof was rescinded by the agreement of cancellation made .between the parents and Franz so that no action lies thereon in favor of either of the plaintiffs. From judgment in accordance' with these findings the plaintiffs appeal.