Cleveland v. Southard
Wisconsin Supreme Court
APPEAL from the Circuit Court for Oreen Lake County. In April, 1856, Samuel Southard and wife, in consideration of $3,025, the receipt of which is acknowledged, conveyed certain lands to Daniel H. Safford. Following the description of the land, in the deed, were thesowords: “The said land being subject to a mortgage executed by the parties of the first part, to the ' Milwaukee & Horicon Railroad Company, for seven hundred dollars.”
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APPEAL from the Circuit Court for Oreen Lake County. In April, 1856, Samuel Southard and wife, in consideration of $3,025, the receipt of which is acknowledged, conveyed certain lands to Daniel H. Safford. Following the description of the land, in the deed, were thesowords: “The said land being subject to a mortgage executed by the parties of the first part, to the ' Milwaukee & Horicon Railroad Company, for seven hundred dollars.” The deed contained the usual covenant of seizin; a covenant against all incumbrances except the mortgage before mentioned; and a covenant of warranty, “subject to…
1Opinion of the Court
Paiíte, J.
The deed from Southard to Safford must have effect according to its terms. There is no attempt to reform it on the ground of mistake; and whatever dissatisfaction Safford may have felt, when he first learned of the existence of the railroad mortgage, and the exceptions against it in the deed, must be considered as of no avail after he finally accepted the deed, and took possession under it, claiming title.
Taking the deed, therefore, as expressing the real contract of the parties, we have no doubt that as between them the land was the primary fund for the payment of the mortgage.'…
2Cited by10 opinions
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- Lewis v. DaySupreme Court of Iowa · 1880
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