39 Wis. 492 | Wis. | 1876
Like the case of Button v. Schroyer, 5 Wis., 598, the transaction between Smith and Kimball, of the one part, and Bogk, of the other part, “ is an ordinary case of a contract for the sale and conveyance of real estate, part of the purchase money having been paid, * * * and the title, withheld as security for the remainder of the purchase money. * * * The relation between the parties is analogous to that of equitable mortgagor and mortgagee. The former has the equity of redemption; the latter has the correlative right of foreclosure.”
Bogk having failed to make the payments of purchase •money stipulated for' in the contract, Smith and Kimball
Smith and Kimball held the legal title to the land as security for the payment of all the notes given by Bogk for the unpaid purchase money. This security was essentially a mortgage interest.in the land. Had they transferred all of those notes to plaintiff, instead of but one of them, we are clear that they would thereafter have held the legal title to the land in trust for the security of the plaintiff, and that after Bogk had made default by failing to pay his notes at maturity, the plaintiff would have been entitled, not only to .a strict foreclosure of Bogk’s equity of redemption, but to a judgment against Kimball and Smith enforcing the execution of such trust in some appropriate manner. These principles have been asserted and applied in several well considered cases, and we think the decisions rest upon solid grounds. We cite a few of the cases: Roper v. McCook, 7 Ala. (N. S.), 318; Smith v. Robinson, 13 Ark. (8 Eng.), 533; Graham v. McCampbell, Meigs (Tenn.), 52; Moore v. Anders, 14 Ark., 628; Tanner v. Hicks, 4 Smedes & Mar., 294.
The learned counsel for the appellant maintains that the security held by Kimball and Smith is in the nature of a vendor’s lien (which he says is not assignable), and hence, that the transfer of the notes of Bogk for the unpaid purchase money emnot operate as an assignment of such security. It must be conceded that there are cases which seem to support the counsel’s position. And yet, we think it apparent that there is a fundamental distinction between the lien of a vendor or grantor of land for unpaid purchase money, and the security held by Smith and Kimball in the present case. In
If Kimball and Smith would have held the land as trustees for the plaintiff had they transferred to him all of the purchase-money notes, no good reason is perceived why they do not now hold it as such trustees to the extent of his interest in such notes. The transfer of one of several notes secured by a mortgage carries with it to the transferee an interest pro tanto in the mortaged premises; and inasmuch as the security held by Kimball and Smith was tantamount to a mortgage for the unpaid purchase money, it necessarily follows that when they transferred to the plaintiff a note given for a part of such purchase money, they became his trustees for a corresponding interest in the land, the legal title to which they held as security for the whole debt. Before Bogk’s equity of redemption was foreclosed, such interest was confined to the legal title; but thereafter the interest so held by Kimball and Smith as trustees for the plaintiff was and is the absolute title to an undivided portion of the land. The note of plaintiff being for $50, and the whole unpaid purchase money being $3,700, the
It follows from the views above expressed, that the plaintiff and Kimball and Smith are on the same footing in respect to-the land. Hence that portion of the judgment which declares that plaintiff’s rights therein are paramount to those of Kim-ball and Smith, is erroneous.
The judgment is also erroneous in. that it directs the land to be sold. True, we hold that the security with which we are dealing is essentially a mortgage interest, and the statute (R. S., ch. 145, sec. 1) provides that in actions for the foreclosure or satisfaction of mortgages, if the plaintiff recover, the' court shall order a sale of the mortgaged premises, or of so much thereof as may be necessary to satisfy the mortgage debt and interest; yet we do not think this security is within the statute. It is quite manifest that the statute has reference to ordinary mortgages, which leave the fee of the mortgaged premises in the mortgagors, only to be divested by the foreclosure sales (Wood v. Trask, 7 Wis., 566), and, not to a security like that in the present case, which, although analogous to a mortgage, vests or leaves the fee in the mortgagee. In the former case a sale may be deemed necessary to divest' the mortgagor of the fee, while in the latter case the mortgagor has produced the same result by his own act or contract,, and, having nothing but an equitable interest in the land, he may be divested thereof by a decree or judgment of the .court, and a sale is unnecessary. In Baker v. Beach, supra, the default occurred after the above statute was enacted, and the case was governed by the statute. Although we find there-
Besides, this is not properly a foreclosure action. That was the nature of the action of Kimball and Smith against Bogk, the judgment in which terminated the equity of redemption of the latter. The real office of this action is to determine the plaintiff’s interest in the land, and to secure it to him. It is true the action was not brought on that theory, but the necessary facts are alleged to entitle the plaintiff to that relief, and there seems to be no good reason 'why he should not obtain it in this action. To that end, a sale of the land is entirely unnecessary.
All that can be required of the appellant and the representatives of Kimball, is, that they execute their trust by conveying to the plaintiff an undivided one seventy-fourth part of the land, or, if it is not in their power to do so, that they mate compensation therefor on equitable principles.
It is freely conceded by counsel for the .plaintiff that it was error to render a personal'judgment in the action. That it was error to render such a judgment^ admits of no doubt.
By the Gov/rt. — The judgment is reversed, and the cause remanded for further proceedings according to law.
