13 Wis. 670 | Wis. | 1861
By the Court,
This action was commenced in November, 1859, to foreclose a mortgage. The mortgage was given by Gilbert and wife to their co-defendant, Jeremiah B. Davis, to secure the payment of two promissory notes. The complaint states that the notes and mortgage were assigned by Jeremiah B. Davis to the respondent; and that the other defendant, Jeremiah Davis, for a valuable consideration expressed on the face of an instrument in writing signed by him, guaranteed the collection of the notes. There was no appearance by any of the defendants, and judgment by default was entered for the sale of the mortgaged premises, and also for a personal judgment against the mortgagor, Gilbert, the assignor, Jeremiah B., and the guarantor, Jeremiah Davis, for any deficiency which might be found due after the security was exhausted. And the question arising upon the record is: Could the guara utor properly be made a party to the suit for the foreclosure of the mortgage, and was it regular to render a personal judgment against him in that action, for any deficiency which might be found due ? Or, should the respondent have first exhausted his remedy upon the notes and mortgage before he could resort to his action upon the guaranty? In the case of Dunkley vs. Van Buren, 3 Johns. Ch. R., 330, Chancellor KENT stated that a party, on a bill to foreclose a mortgage, was confined in his remedy to the pledge, and that such
Whether in some of the decisions in the above cases the statute was not extended so as to embrace cases not fairly coming within its provisions, we will not stop to inquire. It is sufficient to say that these provisions of the N. Y. statutes, which were substantially incorporated in chapter 84, R. S., 1849, have been left out of the present revision. We are therefore to determine whether, in the absence of these provisions, it is regular and proper to make a third person who has guaranteed the collection of the mortgage, a party to the suit to foreclose the mortgage. We are of the opinion that it is not. The plain, obvious import of the guarantor’s contract is, that he will pay the debt, provided, on due diligence, it cannot be collected out of the mortgagor, or made out of the security. It is not an absolute promise to pay in the first instance. The respondent should exhaust his remedy against the mortgagor and the mortgaged property, before he can call upon the guarantor to make good his contract. The former are the primary sources to which he must look for the payment of his debt. If they fail or prove inadequate, then the guarantor becomes liable. It was therefore improper and erroneous to make the guarantor a party to this suit, and to take a personal judgment against him, under the allegations of the complaint. The respondent should first have exhausted his remedy upon the notes and mortgage, before proceeding against the guarantor ''eremiah Davis.
The judgment of the circuit court must be reversed, and • a new trial ordered.