Johnson v. Blumer

Eschweiler, J.

(dissenting). The two five-year notes of December 12, 1907, and the mortgage securing them were drawn by Durst and held by him continuously thereafter. He first held them as agent of Johnson until the latter’s death in 1912, the notes being then past due. During *380this period the conveyances, Dahms to Keller and Keller to Blumer, were executed. The mortgages given and. other matters connected with these two conveyances were facts of which Durst had personal knowledge.

On Johnson’s death, Durst as executor then held them, but failed to act under sec. 3829, Stats., which declares that such mortgage interest and notes shall be considered’ as personal assets in his hands and that he may foreclose the same. Instead of so doing he assigned them, though long past due, to the plaintiff, recording the assignment, but continued possession thereof as her agent until the trial in March, 1922.

No one could have known better than Durst that Keller and Blumer would not have paid the moneys they did in the manner they did, on their respective purchases, if either knew of the fact that there was then this past-due prior lien. If Durst had personally owned these, his silence would undoubtedly have barred him from any right to foreclose in equity as against Keller or Blumer. Hustis v. McWilliams, 175 Wis. 365, 372, 185 N. W. 159. His connection with the bank would not have altered this.

If during these transactions Blumer or Keller had asked Durst the direct question if there be any prior lien against this property and he had said No, there can be little question but that such answer, made while he was in possession as agent for the then owner of such notes and mortgages, would have bound his principal as it would have bound him as an individual. This also irrespective of his position with another creditor concerned with these transactions and interests, the bank.

Under all the facts and circumstances here shown I think that his silence should be considered the equivalent of a representation that there was no prior obligation, thereby creating an equitable estoppel.

Both as agent and as executor he acted in evident reliance upon the security of Dahms’ liability upon the notes rather *381than upon the mortgage security; this by treating with Dahms alone; by not communicating with those who would, in the ordinary run of things, take care of it on any purchase of the real 'estate; and by permitting the notes to run when long past due; by his delay in foreclosing, -all to the great injury of Keller and Blumer; and this is, as I view it, gross laches which should leave his principal barred of this equitable relief. Bur v. Bong, 159 Wis. 498, 150 N. W. 431; Driscoll v. Tillman, 165 Wis. 245, 249, 161 N. W. 795.