14 Wis. 281 | Wis. | 1861
By the Gourt,
As the provision of our former statute, which authorized the court, in a suit to foreclose a mortgage, to give judgment for any balance of the mortgage debt that might remain unsatisfied after the sale of the mortgaged premises, has not been re-enacted, we have held in Sauer vs. Steinbauer (ante, p. 70), that under our present statutes such a judgment could be given only where the mortgagor was the sole defendant. This decision would be controlling on one point made in the present case, were the appellants in a position to avail themselves of it. Here the wife, who signed the mortgage with her husband but did not execute the bond, is made a party. We shall assume that she was a necessary party in order to extinguish her inchoate right of dower, though this point is not as clearly settled by the authorities as I expected to find it. The general practice undoubtedly is to make her a party, though what would be the effect of an actual foreclosure and sale of the equity of redemption during the lifetime of her husband, under a decree to which the wife was not a party, but where she signed the mortgage, is left in much doubt and uncertainty. See Denton vs. Nanny, 8 Barb. (S. C.), 618; Mills vs. Van Voorhis, 23 id., 125; Bell vs. The Mayor of New York, 10 Paige, 49 ; Simonton vs. Gray, 34 Maine, 50; Wedge vs. Moore, 6 Cushing, 8; Keckley's Adm’r vs. Keckley's Ex’r, 2 Hill’s Ch. R, 250. But the wife having been made a party for the purpose of extinguishing her inchoate right of dower, while judgment is asked against the husband for any defi-
Subdivision five, section five, chapter 125, R. S., provides that a party may demur to a complaint when it appears on the face thereof that several causes of action have been improperly united. The eighth section declares that when any of the matters enumerated in section five do not appear upon the face of the complaint, the objection may be taken by answer; while section nine provides that if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and an objection that the complaint does not state facts sufficient to constitute a cause of action. That there was a misjoinder of actions appeared upon the face of this complaint, and therefore objection upon that ground should have been taken by way of demurrer. The appellants did not object that there was a misjoinder, either by demurrer or otherwise; and if any force is given to the above provisions of law, they must now be deemed to have waived it.'
In the case of Borden vs. Gilbert, 18 Wis., 670, a guarantor was made a party to a suit to foreclose a mortgage. "We held that this was a misjoinder, and reversed the judgment on that ground. It is true that was a judgment by default; but our attention was not called to the provisions of the statute which provide that a party can only take advantage of a misjoinder by demurrer or answer, and that if he does not do so, he must be deemed to have waived the objection. This remark is necessary in order to explain the inconsistency between the decision in that case and the present one. We entirely overlooked the statute which settles this point of practice against the appellants.
The appellant Wheeler sets up in his answer that the loan was usurious. This defense cannot avail him in this suit. We shall not scrutinize very closely the evidence offered, to see whether there was usury in the original transaction or not. For even if we assume that the loan was usurious, and that the bond and mortgage could be avoided upon that
The judgment of the circuit court is affirmed.