94 Wis. 176 | Wis. | 1896
The question presented by these appeals is the one question — whether the complaint states a cause of action against the guarantors, such as authorized a personal judgment to be rendered against them in the foreclosure action. It is no doubt settled beyond controversy that a, guarantor of the collection of a note or debt does not become liable on his contract of guaranty until the guarantee has exhausted all the remedies which the law gives him for the collection of his debt from the principal debtor without-avail. This means the prosecution of a suit against such principal debtor to judgment and execution. The legal remedies are said to be exhausted upon the proper return of an execution unsatisfied for want of goods whereon to levy. Day v. Elmore, 4 Wis. 190; Dyer v. Gibson, 16 Wis. 557; French v. Marsh, 29 Wis. 649. It is clear that an action at law could not be maintained on this guaranty before the-return of an execution unsatisfied. This rule is not questioned. But it is claimed that the rule has no application to a case where the debt is secured also by a mortgage. In that case it is claimed that the guarantor is a'proper party to the action to foreclose the mortgage, and liable in such action to a personal judgment in case of a deficiency. But this cannot be true in the absence of some statutory provision. to that effect, for in such a case the guarantee must exhaust his remedies against both the mortgaged property and the principal debtor before he can proceed against the guarantor. This was so held in Borden v. Gilbert, 13 Wis. 670. But it is claimed that all this is changed, in the case of a. debt secured both by a mortgage and a guaranty, by R. S. sec. 3156. This section provides that in all foreclosure ac
By the Court.— That part of the foreclosure judgment which orders judgment for a deficiency against the guarantors, and. the judgment for the deficiency against them, are reversed.