Mathews v. Wilson

SHAW, J.

In this action plaintiffs sought a decree foreclosing a mortgage made and executed by Frank 0. Wilson to secure the payment of a promissory note in the sum of ten thousand dollars given by him to Maud T. Taylor and Minna Jantzen.

[150]

Judgment' went for defendants; whereupon plaintiffs moved for a new trial, which the court denied, and they appeal from such order.

Stripped of surplusage and matter which can have no bearing upon the merits of the case, the complicated record discloses the following facts which, in considering the appeal, we deem pertinent to the controversy:

On May 5, 1909, Mrs. Taylor, since deceased, and for whom, as defendant, Nelle Bromley, her administratrix, has been substituted, was the owner of the land thereafter made the subject of the mortgage, and desiring to sell or exchange it, she appointed Christian Jantzen as agent to negotiate such sale or exchange, and at his request conveyed the land to his wife, Minna Jantzen, as trustee. Thereupon Christian Jantzen effected an exchange of the property with Frank 0. Wilson, to whom he caused it to be conveyed by Minna Jantzen, and as a part of the consideration therefor said Wilson executed his note to Maud T. Taylor and Minna Jantzen for the sum of ten thousand dollars and as security for the payment thereof executed the mortgage in question covering the land conveyed to him by Minna Jantzen. In consummating the transaction Christian Jantzen was guilty of fraud and deceit practiced upon Wilson, as a result of which the latter was thereby induced to execute the note and mortgage. Upon discovering that he had been defrauded he, in May, 1911, notified Mrs. Taylor of such fact and she repudiated the acts of Christian Jantzen. Thereupon it was agreed by Mrs. Taylor and Wilson that the transaction should be rescinded. In order to effect such rescission Wilson, at Mrs. Taylor’s request, conveyed the land to Thomas Ball in trust for her, and at the same time she caused Minna Jantzen’s one-half interest in the note and mortgage to be assigned to Ball, the effect of which was to cancel such interest in the mortgage by merging the same in the fee. Prior to the rescission, however, to wit, on October 31, 1910, as found by the court, Mrs. Taylor assigned her one-half interest in the note and mortgage to one George Jude, from whom, by mesne transfers and assignments, these plaintiffs, in consideration of two thousand five hundred dollars paid therefor, acquired it. As to this last transaction, it appears from the findings that Mrs. Taylor, before learning of the fraud and deceit practiced by Jantzen as her agent upon Wilson in negotiating the ex