159 Wis. 498 | Wis. | 1915
The following opinion was filed January 12, 1915:
The plaintiff’s right to foreclose his mortgage, although the note secured by the mortgage is barred by
The defendants contend that the plaintiff has lost his interest and rights to their property by reason of their adverse possession of the premises as against him and all others claiming any interest therein. There is no dispute but that plaintiff obtained a valid mortgage covering an undivided one-ninth interest in lots 15 and 16 on July 18, 1893, which mortgage was duly recorded and remains unsatisfied of record to the present time. The mortgagor, Bong, defaulted in the payment of the sum of $150 of the original indebtedness and of the interest which accrued on the entire principal after the same became due, which the court found now amounts to $926.73. The circuit court found that there is due the plaintiff from the defendant Bong these sums, amounting to $1,676.63, and that plaintiff’s rights under these mortgages have not been cut off by adverse possession of the premises on the part of Bong or Bertha M. Holland. The general rule is that possession of the premises by the mortgagor is presumed to he in subordination to the rights and interests of the mortgagee or purchaser under foreclosure sale until it is shown that such possession was in fact adverse to the rights and interests of the mortgagee in the premises. Avery v. Judd, 21 Wis. 262; Wright v. Sperry, 25 Wis. 617; Seeley v. Manning, 37 Wis. 574.
The mortgage being duly recorded when Bong deeded his interest in lot 15 to Schauer and he to defendant Holland, it requires some distinct act of denial on their part, of being in possession in subordination to plaintiff’s rights, to terminate
It is contended that tbe plaintiff by bis laches is precluded from enforcing tbe mortgage. In tbe case of Rogers v. Van Nortwick, 87 Wis. 414, 58 N. W. 757, this court declared that:
“A court of equity applies tbe rule of laches according to its own ideas of right and justice, and tbe courts have never prescribed any specific period applicable to every case, like tbe statute of limitations; and what constitutes a reasonable time within which tbe suit must be brought depends upon tbe facts and circumstances of each particular case.”
Tbe court also there quotes approvingly tbe following:
“No rule of law is better settled than that a court of equity will not aid a party whose application is destitute of con*504 science, good faitb, and reasonable diligence, and will discourage stale demands, for tbe peace of society, by refusing to interfere where there have been gross laches in prosecuting rights, or where long acquiescence in the assertion of adverse rights has occurred.”
In the recent case of Likens v. Likens, 136 Wis. 321, 117 N. W. 799, this court, referring to the nature and application of this defense, stated:
“The defense of laches does not depend upon any statute of limitation, but is in the nature of an equitable estoppel, and operates as a bar upon the right to maintain an action by those who unduly slumber upon their rights. There is no fixed rule as to the lapse of time necessary to bar a suitor in a court of equity. Each case must stand upon its own particular facts. Great lapse of time, if reasonably excused and without damage to the defendant, has been ignored; while slight delay, accompanied by circumstances of negligence, apparent acquiescence, or change of defendant’s position, has been held sufficient.”
Other cases in this court wherein the doctrine was involved and applied or rejected according to justice and right, under the facts and the circumstances of the case, are: Kropp v. Kropp, 97 Wis. 137, 72 N. W. 381; Cross v. Bowker, 102 Wis. 497, 78 N. W. 564; McCann v. Welch, 106 Wis. 142, 81 N. W. 996; Ludington v. Patton, 111 Wis. 208, 86 N. W. 571; Foote v. Harrison, 137 Wis. 588, 119 N. W. 291; Russell v. Fish, 149 Wis. 122, 135 N. W. 531.
As respondent asserts, the fact that the statute of limitations has run against the debt evidenced by the notes is not a bar to an equitable action for enforcing the mortgage lien against the property; the plaintiff has the right to enforce it any time within twenty years. The action is equitable in its nature and, like all rights sought to be enforced' in our courts, it is subject to be defeated by the equitable defense of laches, as recognized in the .law. This question arose in McCann v. Welch, supra, and the court there, speaking through Justice
The evidence in the case showing the relationship of the parties and their conduct in dealing with the matters in issue is not voluminous and clearly shows the facts surrounding the transaction and the relationship of the parties. ■ It appears that the defendant Bong, the mortgagor, defaulted in his pay
The facts and the circumstances of the case showing the relationship of plaintiff and the defendant Mrs. Holland present a totally different situation. As above stated, the mortgage securing this debt embraces a one-ninth interest in lot 15, owned by Mrs. Holland since 1898. The recording of this mortgage operated to give Mrs. Holland constructive notice of its existence, though it appears she had no actual knowledge thereof until July, 1912. It must be assumed, then, that the plaintiff had the right to treat Mrs. Holland as
By the Court. — The judgment appealed from is reversed as to the defendant Mrs. Holland, and the cause remanded with directions to.award judgment dismissing plaintiff’s complaint as to Mrs. Holland; and the judgment is affirmed as to the defendant Bong.
A motion for.a rehearing was denied, with $25 costs, on Eebruary 9, 1915.