Brunette v. Schettler

21 Wis. 188 | Wis. | 1866

Cole, J.

It is insisted on the part of the appellant, that the finding of the court below is erroneous in this: that there is no evidence to support the conclusion that the respondents were the owners of the bond and mortgage. On the contrary, it is said that the undisputed testimony of the respondent Augustin Brunette shows that they were not the owners of the bond and mortgage, but that an interest to the extent of $1500 had been assigned to Risk. It does not appear, however, from the testimony, that Risk became interested in the mortgage debt previous to the commencement of the suit. Augustin Brunette says, in bis testimony, that he has secured to Fisk, by assignment, $1500 out of the Schettler mortgage ; but when be made this assignment he does not say. If Fisk has become interested in the debt since the commencement of the suit, he will be bound by the judgment. The appellant has not required Fisk to be made a party, and it seems too late, at this stage of the cause, to raise the objection that he should be before the court; especially as it does not appear that he acquired hi§ interest before the suit was commenced.

It is further insisted, that the appellant ought not to be compelled to pay the mortgage before the liens and incumbrances upon the land purchased by him of Augustin Brunette are removed and cancelled. It appears that he entered into actual possession of the mortgaged premises when he purchased, and has remained in such possession up to the present time. No paramount title has been asserted to the premises, nor is it clearly established that there are any valid liens against the property. There are no outstanding liens against the mortgaged premises, unless it be those of the judgment creditors of Eastman; and it is impossible, as the case now stands, to protect the appellant against those liens, even if they ever became liens upon the property. The most that can now be said in respect to those judgments against Eastman is, that possibly they may be held to be liens upon the mortgaged premises, though in the present state of this record that question is left in doubt and uncertainty. Nor do we think it would be proper, in the absence of the judgment creditors of Eastman, to go into the question as to whether their judgments became liens upon the mortgaged premises or not. For it is very obvious, if we were to bold that those judgments never became liens upon the mortgaged premises, our decision would not conclude the creditors upon that question. And if the appellant bad desired that matter to be definitely adjudicated and settled, be should have applied to the court to compel the respondents to make those creditors parties ; or himself have brought them before the court in some proceeding in the nature of a cross action. But as the case now stands we can make no decision which will bind the creditors upon the point whether their judgments against Eastman became valid liens upon the mortgaged premises or not, nor protect the appellant against those outstanding claims.

By the Court.- — -The judgment of tbe circuit court is affirmed.