10 Wis. 356 | Wis. | 1860
By the Court,
We agree entirely with the •appellant’s counsel when he says this is truly an anomalous
The' purpose of the parties to leave Lyness in full possession of all his rights, under his mortgage, notwithstanding the rule, under the first decree, in case he should be adjudged to have a prior lien, fully appears from the first clause of the stipulation, which provided that the appellants might go on and sell under their decree, “ without prejudice, and that the defendant Lyness might file his answer and prosecute his defense, as though no order pro confesso had been entered against him.” What language more expressive than this for the purpose of saving to Lyness all his rights, notwithstanding the decree and sale, could have been used ? And in what way could the appellants have more effectually waived all right to insist upon the decree and sale as a bar to his claims ? We confess our inability to see how such an agreement could have been more plainly and unequivocally expressed. Although the first decree purports on its face to be an absolute bar to the rights of Lyness, yet no one can doubt that the appellants could have waived their rights, under it, and consented that it might be pro tanto opened,
Because, in the latter part .of th@ stipulation it is stated that a sufficient sum of money to satisfy the claim of Lyness, in case the court decided in favor of the priority of the lien of his mortgage was to be considered in court, and because the defendants covenanted to hold themselves responsible for all moneys adjudged to him in the cause, it is contended that he is not entitled to proceed by judgment of foreclosure and sale to satisfy it. The reason urged is, that the stipulation shows that he relied on the covenants and personal responsibility of the appellants, as a security for the payment of his debt, in case he finally succeeded in the action. This position is untenable, because by such construction of the stipulation the first clause is deprived of all force and efficacy, and is wholly annulled. The agreement is to
The objection that the answer does not ask the relief granted, is purely technical. The prayer lays a substantial foundation for such relief. The facts disclosed by the record are not such as to induce us to draw any nice distinctions for the sake of sustaining the appellants in the course which they have pursued in this case.
The judgment of the circuit court is affirmed with costs.