125 Wis. 297 | Wis. | 1905
Several supposed defects in the appeal from the county court are pointed out in the brief of counsel, but it does not appear by the record that any objection to the jurisdiction of the circuit court was made, except upon the
See. 4032, Stats. 1898, upon which counsel for appellant rely in support of tbe objection as regards tbe filing of the-bond, is remedial and must be liberally construed so as to-give tbe largest measure of protection to tbe right of appeal, which it will reasonably permit. Such right is given by sec. 4031, .which provides that any person aggrieved by a decision; of the county court “may appeal therefrom to the circuit court ... by filing a notice thereof with said county court within sixty days from the date of the act appealed from,. . . . together with such undertaking as is required in” sec. 4032. A literal compliance with the words of the statute is-not necessary. Substantial compliance is sufficient. Perkins v. Shadbolt, 44 Wis. 574. The prime essential in taking an appeal is the filing of a notice of appeal within the time limited therefor. That being done, the filing of the bond after-wards will operate to perfect the appeal. In Perkins v. Shadbolt, supra, it was held that a bond may be perfected even-after the sixty-day period. The language of the statute as it then existed, and is now found in sec. 4032, was given substantially the same effect, as regards the language of the statute now found in sec. 4031, as has been given to somewhat similar statutes as regards appeals to this court. Harrigan v. Gilchrist, 121 Wis. 127, 212, 99 N. W. 909. Sec. 4032’ provides that the party appealing shall, “at the time of filing notice of appeal and before his appeal shall be effectual for-any purpose, file with the county court an undertaking,” etc.,, plainly indicating that, while for any purpose of the appeal, as regards official action in sending the papers to the appellate;
The claim was in the nature of an action upon contract. There is no suggestion in the statement of facts made in support thereof of a demand based upon equitable right of subro-gation. Upon the cause assuming the character of an action pending in the circuit court, as it did on the appeal thereto being perfected and the record being properly filed in such court, it was an action pending there for legal relief, — an action to recover upon contract. There was no evidence to support such a cause of action, but there was evidence, as the court viewed the matter, showing that respondent was entitled to be subrogated to the ownership of the mortgage interest which was discharged by the use of her money, and after finding the facts in that regard the court ordered the claim to be amended accordingly, and thereon and upon such facts rendered the judgment complained of.
It has been repeatedly held that it is not permissible to entirely change the nature of a cause of action by amendment, — substituting one in equity for one at law, or one on contract for one sounding in tort. Carmichael v. Argard, 52 Wis. 607, 9 N. W. 470; Gilman v. Gross, 97 Wis. 224, 229, 72 N. W. 885; Post v. Campbell, 110 Wis. 378, 85 N. W. 1032; Gates v. Paul, 117 Wis. 170, 94 N. W. 55; Klipstein v. Raschein, 117 Wis. 248, 94 N. W. 63.
The learned court seems to have supposed that the cause
The trial court went beyond the law of subrogation in this •case. If one is compelled to pay a debt for which 'he is not personally liable in order to protect his interest in the property upon which such a debt is a charge superior to such
Rightly understood, subrogation existed entirely independent of contract relations. It is wholly a creature of equity,— a mere means by which the substantial ends of justice may be accomplished. If a person pays off a lien claim on property for which he is not but another is liable so that such other would derive the benefit thereof, if his interest in the property were entirely relieved from such lien, and such person acts-in the matter, not as a mere volunteer, but to protect his own’ interest in such property, such interest being legal or equitable, and either present or contingent, equity immediately operates in favor of such person by preserving such lien claim to him with the same right to enforce it as the original owner possessed, to the extent that such person would otherwise suffer loss to such other’s gain. Such enforcement in the hands of the equitable assignee is, in effect, asking for something in the right of the equitable assignor. The scope of' the right is not enlarged to the gain of nor diminished to the prejudice of the equitable assignee by its devolution from one-to the other. If a person paying off the lien is secondarily liable for the debt, there springs out of the transaction an implied promise by the one primarily liable to repay the money. That does not rest on the law of subrogation. It is enfor-cible as a legal liability, but where the payment is merely to-protect the interest of the payor, as in this case, equity only
Here we are speaking of the right acquired by the mere circumstance of payment under the circumstances indicated, not of the right one might have if the person receiving the payment, voluntarily recognizing the equity of the situation, or being compelled to do so by equity jurisdiction, as might be done in some circumstances, assigns the legal claim against the person primarily liable therefor. In such circumstances, of course, the right to be clothed with the title to the legal claim rests on the law of subrogation, but so long as there is no transfer, other than by devolution by operation of equity from the mere circumstance of payment, the person possessing the equitable title can only follow the property upon which' the charge rests by the use of equity jurisdiction. In case of payment of a mortgage lien, as in this instance, no right to an assignment of the legal claim or assignment of the mortgage: by act of the mortgagee exists. Sheldon, Subrogation, § 45-That is so because the devolution of the mortgage lien and‘_ equitable preservation of the indebtedness, so far as neces- ■ sary to support it, is all that is required for the protection* of the one making the payment. The right by subrogation,-as we are now treating it, is entirely inconsistent with the continued existence of the legal claim against the mortgagor, because. it springs out of the circumstance of the legal claim being extinguished. Sheldon, Subrogation, § 6. Thus, in any view of the law, it will be seen' that the only right respondent acquired by the act of her having paid the debt of her husband secured upon, the homestead was limited to an enforcement of the mortgage lien as to the mortgaged property, or its equivalent in a changed form into which it could be traced and identified.
It would seem without authority that the principles of sub-rogation should apply to a case where a married woman having an interest in a homestead, the title to which is in he]?
If we could successfully pass in favor of respondent the entire change in the theory of the cause of action, which occurred as before indicated, and the rendition of a judgment upon the one that the legal claim against the mortgagor passed to respondent as a result of her paying the same, or that such payment created a new such claim so that it could be enforced as a money demand in favor of respondent, and that too without any proof whatever that the mortgaged property, in specie or in a converted form, could be identified as forming a part of the estate of her deceased husband, there would yet be an insuperable obstacle in the way of a recovery by reason of the statute of limitations, as we shall see.
Counsel for appellant insist upon the statute of limitations as a defense, though conceding that according to the decisions (of this court such defense is not available in an action between husband and wife, and request reconsideration of our -decisions in that regard. Counsel seem to concede more than is respondent’s due under the facts of this case. If that were not true, it is too late to reconsider the question of whether the statute of limitations operates on a transaction between husband and wife giving rise to a cause of action between ■them. It should be noted that our decisions, when applied to the facts of the cases in which they were made, have not -gone further than that. The common-law rule is that the limitation statutes do not run against a married woman, subject to the exception that where it has commenced to run on -a cause of action the intervening circumstance of marriage will not interrupt it. The rule in its origin was grounded .on the disabilities of coverture. In our statute of limitations
As has been indicated, the right acquired by respondent by the payment of the mortgage indebtedness was a privilege to use the mortgage lien to recover the money bach out of the mortgaged property, — one unlike the ease where a person secondarily liable for an indebtedness pays off the same. In such circumstances, as we have seen, by the equity of the law, privity is created between the payor and the primary debtor1 essential to contractual relations. The right of subrogation merely justifies the payor in asserting the mortgage right of the payee, which, though extinguished, is kept alive as an equitable charge for the benefit of the latter. The statute of limitations commences to run on a cause of action on implied contract, where one accrues in the manner stated, upon the happening of circumstances creating the implied promise, and upon such cause of action being extinguished by the statute of limitations, the equitable right of subrogation to the use of securities incident to the contract right falls also. If there-is merely the right of subrogation to an interest in property, not incident to any legal right, as in this case, the statute of' limitations commences to run upon the cause of action at the time it accrues to the person from whom it was derived by subrogation. The devolution of such cause of action does not interrupt the running of the statute. Upon the termination of the full statutory period measuring the life thereof, it is desti’oyed. Rittenhouse v. Levering, 6 Watts & S. 190; Arbogast v. Hays, 98 Ind. 26; Kreider v. Isenbice, 123 Ind. 10,. 23 N. E. 786; Fink v. Mahaffy, 8 Watts, 384; Joyce v. Joyce’s Adm’r, 1 Bush, 474; Boevink v. Christiaanse (Neb.)
Harris at the section above cited, using Walker v. Vaudry, supra, as an illustration, says:
“Plaintiff being subrogated, as he was; to all the rights of A., can have and exercise no greater rights than he had. This is a cardinal principle in all cases of subrogation.”
The court said in the illustrative case:
“Howe, who had obtained his judgment against Yaudry on the 16th day of December, 1840, could not have brought a revocatory action against him on the 31st day of October, 1842. It is equally clear, that if Howe could not do it, Walker cannot; for a person subrogated to the rights of another, cannot have any other or greater rights than the latter had.”
In Boevink v. Christiaanse, supra, the court pointed out distinction between the operation of the statute of limitations where there is the mere right of subrogation to the interest of a mortgagee in property and where there is a legal claim with the equitable right by the law of subrogation to use a mortgage lien, though extinguished as to the mortgagee, as an aid to the enforcement of such claim. It was said that in the latter case the right to enforce the security will in no event survive, as regards the statute of limitations, the right to enforce the claim, and in the former that it will not survive the limitation period upon the cause of action to enforce the security itself, measuring from the maturity of such security. In that instance there was a mortgage with the equitable right to enforce the lien, obtained as in this case, and it was held 'that the cause of action, in that regard, dated from the maturity of the mortgage.
So it will be seen that the limitation period upon the, enforcement of the mortgage paid off by respondent expired long before her claim was filed in the proceedings to settle her husband’s estate and long before his death, unless her rights in that regard were saved by the exception in favor of married' women, as regards the statute of limitations. The fact that she made the payment in 1870, because of a threatened foreclosure, shows that the mortgage had previously matured, and that the cause of action thus created, so far as it could be deemed alive at all, was some thirty years old at the time of the commencement of this proceeding. The life of such a cause of action is limited to twenty years. Sec. 4220, Stats. 1898.
The respondent here, if she could recover at all, could only-do so in the right of the mortgagor to whom she made the-payment. The only cause of action which ax*ose upon the making of such payment was one to enforce the cause of action upon the mortgage possessed by the mortgagee at the time of' payment. Obviously, had the mortgage not been paid off, the mortgagee could not have enforced it at the time this action was commenced. The limit of his right under such circumstances was the limit of respondent’s, because since the statute of limitations had commenced running against the mortgage before she became the equitable owner of the lien,,
“The course of decisions, both in England and in this country, has established the rule -beyond doubt, that when the .statute of limitations has commenced running [save as otherwise provided by the written law], it runs over all subsequent disabilities and intermediate acts and events.” “Nor is there-any difference between a voluntary and involuntary disability.” Dekay v. Darrah’s Adm’rs, 14 N. J. Law, 288.
So in any way we can view this case the respondent had no cause of action when she filed her claim.
By the Court. — The judgment is reversed, and the cause-remanded with directions to render judgment in favor of appellant.