#### Phillips, Respondent, vs. Holland and wife, Appellants.

*April 23*

May *14, 1912.*

*Mortgages: Assignment: Foreclosure: Previous agreement for extension: Validity.*

*1.*An agreement by which, for a valuable consideration paid by the mortgagor, the time for payment of a note and mortgage is extended, is valid though not in writing.

2. Such agreement is binding upon one to whom the note and mortgage were assigned after the due date of the note but before the extended time had expired, although such assignee was assured by the assignor that the note was then past due.

Appeal from a judgment of the circuit court for Milwaukee county: E. 0. EsohweileR, Circuit Judge.

*Reversed.*

*525This is an appeal from a judgment of foreclosure and sale, in an action to foreclose a mortgage executed on August 18, 1905, to J. J. Sehissler, to secure a promissory note for the ,sum of $3,500, payable at Schissler’s office on November 1, 1908, interest payable semi-annually on the first day of May and November of each year. The mortgage was assigned and the note transferred by indorsement by Sehissler on November 2,1905, and the mortgage was assigned and the note transferred-without indorsement by Mrs. Eay E. Lovell, Schissler’s assignee, to the plaintiff on September 22, 1910.

Eor the appellants there was a brief by Lenichech, *Robinson, Fairchild & Boesel,*and oral argument by *F. T. Fair-■child.*

Eor the respondent there was a brief by *Fmil J. Imdwig*attorney, and *Moritz Wittig3*of counsel, and oral argument by *Mr. Wittig.*

SiebecKER, J.

The defendants claim that a short time before November 1, 1908, when the note became due, it was extended for a valuable consideration for three years, and that this action, which was commenced on December 2, 1910, was brought prematurely. The plaintiff testified that she received the mortgage and note as consideration for real estate sold to Mrs. Lovell by her, and that Mrs. Lovell assured her in the presence of her scrivener that the note had not been extended and that it was due. The scrivener testified to the same effect.

The defendant *Ernst Holland*testified that before November 1, 1908, when the note became due, he was asked by Schiss-ler whether he desired to have the note extended; that upon payment of $1'T.50 to Sehissler he arranged with Sehissler to have the time of payment extended for three years; that he paid this amount and received a receipt from Sehissler; that be did not know that Sehissler no longer held the mortgage and note and that Sehissler had theretofore transferred the *526note and mortgage to Mrs. Lovell; and tbat be did not know tbat Scbissler was acting for Mrs. Lovell in collecting tbe interest and in extending tbe time of payment. Mr. Scbissler testified tbat be bad tbe transaction with tbe defendant; tbat Mrs. Lovell consented to tbe extension; and tbat an entry of tbe extension bad been made by bis direction in bis books. Mrs. Lovell testified tbat sbe knew of and agreed to tbe extension when Mr. Scbissler brought it to ber notice, and tbat sbe informed tbe plaintiff thereof before and at tbe time sbe formally assigned tbe note and mortgage to ber.

Tbe court found tbat tbe time for tbe payment of tbe note bad not been extended; tbat tbe plaintiff bad no notice or information of tbe extension; and tbat tbe note was past due when tbe action was commenced.

It is difficult to perceive upon wbat evidence in the case tbe court could come to tbe conclusion tbat tbe time for payment of tbe note bad not been extended for three years from November 1, 1908, tbe date of tbe maturity as specified on the face thereof. Tbe evidence is without dispute tbat tbe defendant (tbe mortgagor), tbe owner of tbe note (Mrs. Lovell), and ber agent (Mr. Schissler) entered into an agreement, by which tbe time of payment of tbe note and mortgage was extended for three years and under which tbe defendant paid as a consideration for this agreement tbe sum of $17.50 to Mr. Scbissler. There being no dispute on this point, the agreement became a verity in tbe case and tbe parties thereto are bound thereby. Tbe fact tbat it was not in writing does not affect its validity. *Grace v. Lynch,*80 Wis. 166, 49 N. W. 751; *Fisher v. Stevens,*143 Mo. 181, 44 S. W. 769. True, it appears tbat tbe plaintiff and ber scrivener testify positively tbat Mrs. Lovell represented to them at tbe time of tbe negotiations and tbe transfer of tbe note and mortgage to tbe plaintiff tbat tbe time of payment of tbe note and mortgage bad not been extended and tbat they were then due. This is denied by Mrs. Lovell in ber testimony, and sbe af*527firms tbat tbe time of payment was extended by ber as claimed by tbe defendant and tbat sbe so informed tbe plaintiff and ber scrivener. Tbe trial court manifestly found tbat tbe plaintiff was assured by Mrs. Lovell tbat tbe note and mortgage were past due when the plaintiff purchased them. This, however, is no evidence to impeach tbe agreement actually made between tbe defendant and Mr. Scbissler for such an extension of tbe time of payment and tbe fact tbat it was actually assented to by Mrs. Lovell. We are constrained to bold tbat tbe trial court’s findings on this point are against tbe undisputed evidence and tbat shortly before tbe note became due on November 1, 1908, an agreement was made by tbe defendant and Mrs. Lovell, for a valuable consideration, extending tbe time of payment for three years, and tbat tbe note was not due and payable until November 1,1911.

Tbe plaintiff acquired no other rights under tbe assignment to ber than those of ber assignor. Sbe was bound by tbe extension agreement *(Allison v.*Manzke, 118 Wis. 11, 94 N. W. 659), and hence this action was prematurely brought. Tbe court should have so found and have awarded judgment accordingly.

*By the Court.*— Tbe judgment appealed from is reversed, and tbe cause remanded with directions to dismiss tbe complaint.