145 Wis. 478 | Wis. | 1911
The appellants insist that the court erred (1) in not compelling the plaintiff to exhaust his remedy against Agnew on the note, and thereby save the appellants from paying more than $1,600 and interest on the mortgage debt; (2) in not compelling the plaintiff to exhaust such remedy to save the homestead of the appellants; and (3) in not compelling the plaintiff to exhaust such remedy to save the property of Jean B. Cairncross and not compel her to pay her husband’s debts.
1. Cairncross indorsed the Agnew note and waived demand and notice of nonpayment thereof and then delivered it to the plaintiff, and the court found that such note was delivered to secure a new loan of $100 and as collateral security for the payment of the note secured by the real-estate mortgage. This transaction amounted to an absolute agreement on the part of the indorser to pay the note at maturity if the maker did not do so. Hoover v. McCormick, 84 Wis. 215, 217, 54 N. W. 505; Mallory v. Lyman, 3 Pin. 443. It is
2. The .mortgage covered property occupied as the homestead of the defendants and worth $9,000 and other property worth $2,500, leaving security over and above the amount of the homestead exemption to the amount of $6,500. The foreclosure judgment amounts to $2,413.77. It is very evident, therefore, that the mortgaged property is ample to pay the mortgage debt and still leave the $5,000 homestead exemption intact. But if this were not so, we -perceive no reason in this case why those who claim to be endeavoring to protect their homestead should not pay the plaintiff the amount due on the Agnew note and proceed to collect it themselves. On May 24, 1910, about a month before this action was begun, the defendants tendered to the plaintiff $1,755 in full payment of the mortgage debt, and thereafter deposited the amount of such tender in court. So it is quite apparent that they were not debarred from taking up the Agnew note because of inability to do so.
There is a suggestion made in tbe brief of tbe appellants to tbe effect that Agnew may have some defense to tbe payment of bis note in a suit brought by tbe payee named therein which would not be available against tbe plaintiff, who became a bona fide bolder of it for value before maturity. If this be true, it furnishes a reason why tbe plaintiff should not and perhaps could not be compelled to enforce collection of it.until tbe mortgage security was exhausted. Union Nat. Bank v. Roberts, 45 Wis. 373, 379.
By the Court. — Judgment affirmed.