Endress v. Shove

110 Wis. 133 | Wis. | 1901

MaRshall, J.

The trial court determined the amount due upon the note the mortgage was given to secure according to its terms. We are unable to discover any error in that. True, the note was given, as the court found the fact to be, in part for another note, and it was not sufficient to cover the latter after allowing for $2,000 which the court decided appellant agreed to loan on the former. But it was -competent for the parties, if they saw fit, to treat the new note and the security for its payment, to the extent of $2,000, as a full equivalent for thé old note secured by the policies of insurance. One was a good consideration for the other,, and a full consideration therefor, if such was the agreement between the parties. Notwithstanding there was no dispute about the amount due upon the old note, the security for its payment, at the time the agreement to give the new note was made, may reasonably have been considered much less valuable than the real-estate security, and the substitution of the latter for the former a fair exchange upon the basis of [ihe one being a full equivalent for the other. The effect of the court’s findings is that the parties contracted on that basis, either expressly or impliedly.

The evidence shows that appellant redeemed the mortgaged premises from taxes to the amount of $284.57, before he acquired the legal title by the sheriff’s deed, and that such amount, with interest to the date of the court’s findings, was $350.95. As soon as the redemption was made the outlay therefor became a lien upon the premises secured by the mortgage. The tax lien was extinguished and in its place was created a mortgage lien by force of the statute, of as. high a grade at least as the lien of the indebtedness evidenced by the note. Sec. 1158, Stats. 1898; Hill v. Buffington, 106 Wis. 525. The trial court erred in disregarding the. law on that point. The right of appellant to the benefit of the conditional lien, for the money paid for taxes, was secured to him by the plain letter of the statute. The court had no more right to deny him the benefit thereof than to. reduce by its decree the amount of the indebtedness upon the note. However, since the amount of appellant’s lien as adjudged was large enough to preclude any probability of redemption by Mrs. Shove to save her inchoate right of dower, we are unable to see how the error is prejudicial to appellant so far as relates to the relief granted barring such dower right.

This action was not brought under the statute, to foreclose the mortgage, therefore the provisions thereof in relation to a personal judgment against the mortgagor, Theodore G. Shove, has no application. It is by no means certain that if the mortgagees had stood upon their rights as to the judicial enforcement of the mortgage, such a judgment as we have here could properly have been, rendered. The statutes of this state are mandatory as to judicial proceedings to enforce a mortgage, regardless of the valúe or nature of the interest of the mortgagee in the subject of the mortgage. However, respondent submitted to the proceedings adopted by appellant, so there is no complaint that can now be successfully heard here in regard thereto, unless the trial court committed prejudicial error against appellant in refusing to award him the full benefit of the remedy he invoked.

Complaint is made because of the refusal to render a personal judgment against Mr. Shove. This language was used in the trial court’s decision: “ The plaintiff cannot in this action be given a personal judgment for the recovery of the amount due on the note.” We assume that the court supposed that, since the action was not a statutory foreclosure of the mortgage, rendering the statute on the subject of deficiency judgments applicable, a personal judgment would be improper. The complaint plainly indicates that the pleader intended to secure the benefit of a cause of action against Mr. Shove to recover on his personal liability in the equitable action to bar the dower right of Mrs. Shove. The two causes of action arose out of the same transaction and were connected with the same subject of action. Therefore they were such causes of action as may be properly joined under subd. 1, sec. 2647, Stats. 1898, which provides that causes of action, whether they be such as were formerly denominated legal or equitable or both, may be joined where they arise out of the same transaction or are connected with the same subject of action. True, the statute further requires, as a condition of the joinder, that the several causes of action shall affect all the parties, and be separately stated, which condition was not satisfied in this case. But it has been repeatedly held that objection on that ground is waived unless taken by demurrer. So it seems that the trial court was wrong in deciding that appellant could not have a personal judgment against Mr. Shove. Probably the learned court was guided by the early decision of this court in Walton v. Goodnow, 13 Wis. 661, and decisions to the effect that, without statutory authority, a personal recovery as in an action at law cannot be had in a suit to enforce a mortgage, overlooking subsequent decisions holding that such relief is proper under the Code independent of any statute allowing a deficiency judgment in a foreclosure action. In Sauer v. Steinbauer, 14 Wis. 70, Jesup v. City Bank, 14 Wis. 331, and Cary v. Wheeler, 14 Wis. 281, it was held that the Code provision to which we have referred permits the joinder of an equitable cause of action to enforce a mortgage and an action at law upon the note it secures, if the mortgagee is the only party defendant; and that if there is such a joinder of causes of action where there are defendants unaffected by the personal liability, the defect is waived by failure to demur upon that ground, and both causes of action may proceed to judgment upon equitable principles. Eollowing that rule, a judgment for a deficiency, after the exhaustion of the mortgage security, was held proper, notwithstanding there was no express statute allowing such a recovery.

It follows that appellant was entitled, as a matter of right, to a judgment against Shove for the amount of the latter’s personal liability. The limit of that would be the amount due upon the note if the sole reliance of appellant to recover the expenditures for taxes was the statute (sec. 1158) making such expenditures a lien secured by the mortgage; but such was not his sole reliance. The mortgage contained an express agreement that Shove would pay the taxes. His breach thereof rendered him personally liable for the damages caused thereby to appellant. So the full amount of his personal liability included the expenditures made to redeem the mortgaged premises from taxes. A personal judgment should have been rendered in appellant’s favor for such amount, with'the costs of the action.

By the Court.— The judgment appealed from, as to Ellen E. B. Shove, is affirmed. As to Theodore C. Shove it is reversed, and the cause remanded with directions to re-enter the judgment so it will not extend the time for Mrs. Shove to redeem, but will give appellant the relief he is entitled to against Theodore C. Shove as indicated in this opinion. No costs in this court are allowed to respondent Ellen E. B. Shove. Full costs are allowed appellant against Theodore C. Shove, except that the amount for printing is limited to fifty pages.